fiSI 
 

 BOUGHT WITHTHE INCOME 
 PROM THE 
 
 SAGE ENDOWMENT FUND 
 
 THE GIFT OF 
 
 h JUMi -^^ 
 
 t'^ ' 5931 
 
Cornell University Library 
 JK271 .E46 
 
 Biographical story of the Constitution 
 
 olin 
 
 3 1924 030 465 920 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030465920 
 
BIOGRAPHICAL STORY OF 
 THE CONSTITUTION 
 
 A STUDY OF THE- 
 GROWTH OF THE AMERICAN UNION 
 
 BV 
 
 EDWARD ELLIOTT 
 
 PROFESSOR OF POLITICS IN PRINCETON UNIVERSITY 
 
 G. P. PUTNAM'S SONS 
 
 NEW YORK AND LONDON 
 ^be fcnicfterbocltec press 
 

 Copyright, igio 
 
 BY 
 
 G. P. PUTNAM'S SONS 
 
 Cbe •RnicSetfiocker press, 'Rew Borft 
 
MY MOTHER 
 
Preface 
 
 MR. BRYOE has remarked that "the Constitu- 
 tion of the United States (including the 
 amendments) may be read aloud in twenty-three 
 minutes." Its brevity required that it should be 
 general and only the framework of government could 
 be outlined. The powers of the Federal Government 
 were enumerated, but their extent was left for future 
 determination through interpretation. 
 
 This fact has made it possible for the Constitution 
 to be adapted to the ordinary needs of the national 
 life. At times of crises, as in the Purchase of Louisi- 
 ana and the Civil War, the bounds of interpretation 
 have been passed and the Constitution has been 
 stretched to fit the occasion; recently we have heard 
 of the need of " finding " constructions that will en- 
 able the Federal Government to meet the exigencies 
 of new conditions. 
 
 The history of the Constitution is chiefly concerned 
 with the processes of interpretation and adaptation. 
 The life of the nation does not stand still ; new ideas, 
 feelings, conditions, and forces are constantly driving 
 it forward, and no immutable instrument of govern- 
 ment will suffice; the Constitution, too, must grow, 
 and as the formal process of amendment is too 
 
VI 
 
 Preface 
 
 difficult for ordinary purposes, principles of inter- 
 pretation have, in large measure, taken its place. 
 
 The present work does not seek to deal with the 
 finely elaborated doctrines of the courts, but rather 
 with the larger questions of constitutional interpre- 
 tation, many of which lay beyond the jurisdiction 
 of any court. These questions have been fought out 
 between men and this Biographical Story of the 
 Constitution attempts to picture, through the lives 
 of some of the more conspicuous of these contestants, 
 the struggle and its result. 
 
 The difficulties of this method of treatment are 
 considerable; there is danger of over-emphasizing the 
 part played by particular individuals, of neglecting 
 that taken by others, and of slighting the economic 
 and social forces that have been at work; yet the 
 increased interest which, it is hoped, will come from 
 the introduction of the personal element may offset 
 these disadvantages. The book will have served a 
 useful purpose if it awakens a further interest in 
 the subject of our constitutional history, or throws 
 light upon the general features of our national life 
 at a time when there is great need for a proper 
 understanding of the relationship of a written and 
 rigid constitution to the forces of that life. 
 
 An appendix has been added, composed of docu- 
 ments illustrative of the principal points around 
 which the conflict of opinion has been hottest. A 
 study of these documents, it is believed, will give a 
 truer insight into the thought of the times which 
 produced them than can be had in any other way. 
 
 I wish to express my thanks to my colleagues, 
 Professors W- M. Daniels and E. S. Corwin, for 
 
Preface vii 
 
 their kindness in reading parts of the manuscript, 
 and to Professor Edgar Dawson for reading the 
 whole of it. They are not responsible for the opin- 
 ions expressed, but I am indebted to them for many 
 helpful suggestions. 
 
 E. E. 
 Princeton, N. J., June, 1909. 
 
Contents 
 
 CHAPTER PAGE 
 
 I. The " Fathers " : Inception through 
 
 Compromise 1 
 
 II. Alexander Hamilton: Growth through 
 
 Administrative Organization . . 27 
 
 III. James Wilson: Growth through Specu- 
 
 lative Forecast 53 
 
 IV. Thomas Jefferson: Growth through 
 
 Acquiescence 77 
 
 V. Jambs Madison : Growth through Formu- 
 lation 101 
 
 VI. John Marshall: Growth through Legal 
 
 Interpretation . . . . . 125 
 
 VII. Andrew Jackson: Growth through De- 
 mocratization 147 
 
 VIII. Daniel Webster: Growth through Ris- 
 ing National Sentiment . . . 167 
 
 IX. John C. Calhoun: Retardation through 
 
 Sectional Influence .... 189 
 
 X. Abraham Lincoln: Growth through 
 
 Civil War 209 
 
 ix 
 
X Contents 
 
 CHAPTER PAGE 
 
 XI. Thaddeus Stevens: Growth through Re- 
 construction 229 
 
 XII. Theodore Eoosevelt: Growth through 
 
 Expansion 251 
 
 Appendix 271 
 
 The Declaration of Independence, 1776 . 273 
 
 Articles of Confederation, 1781 . . 279 
 
 Constitution of the United States, 1789 . 292 
 
 Jefferson's Opinion on a National Bank, 
 
 1791 315 
 
 Hamilton's Opinion on a National Bank, 
 1791 318 
 
 Kentucky Resolutions of 1798 . . . 326 
 
 "Virginia Resolutions of 1798 . . . 332 
 
 Abstract of Decision in Case of Marbury 
 V. Madison, 1803 335 
 
 Amendments Proposed by Hartford Con- 
 vention, 1814 337 
 
 South Carolina Ordinance of Nullifica- 
 tion, 1832 340 
 
 Jackson's Nullification Proclamation, 
 
 1832 345 
 
 Abstract of Dred Scott Decision, 1857 . 362 
 
 South Carolina Ordinance of Secession, 
 I860 3g8 
 
Contents xi 
 
 PAGE 
 
 Appendix — Continued 
 
 South Carolina Declaration of Indepen- 
 dence, 1860 369 
 
 Proclamation of Emancipation, 1863 . 374 
 
 Bibliography 377 
 
 Index 385 
 
"The Fathers." Inception through 
 Compromise 
 
CHRONOLOGY OF CONSTITUTIONAL CONVENTION 
 
 1787. May 14. Appointed time of meeting. 
 
 May 25. Quorum first present. 
 
 May 29. Randolph resolutions — Virginia plan proposed. 
 
 May 29. Charles Pinckney submitted draft. 
 
 May SO-June 13. Convention, in committee of the whole, 
 considered Virginia plan and reported favor- 
 ably. 
 
 June 15. Paterson or New Jersey plan proposed. 
 
 June 18. Hamilton's plan proposed. 
 
 June 19. Paterson plan rejected and Virginia plan ad- 
 hered to. 
 
 July 5. Committee reports "Connecticut Compromise." 
 Yates and Lansing left. 
 
 July 16. Amended report accepted. 
 
 July 24. Committee of detail appointed. 
 
 Aug. 6. Committee reported draft of Constitution in 
 23 articles. 
 
 Sept. 12. Committee of revision of style appointed. 
 
 Sept. 17. Adjourned. 
 
"The Fathers." Inception through 
 Compromise 
 
 IN every generation of our national life there have 
 been men who typified the thought and feeling 
 of the time. Some of them have been creators of 
 the ideas associated with their names; others have 
 been merely the embodiment of general doctrines 
 which seemed to be floating in the air, while still 
 others have given expression to the reactionary ten- 
 dencies of their day; but in all of them and through 
 all of them we may trace the progress of the Con- 
 stitution. They typify the views of successive gene- 
 rations upon the great constitutional questions, and 
 by their lives we can measure the stages of advance, 
 now slow, now fast, as the forces at play are halting 
 or quick ; as peace or war, economic welfare or crisis, 
 social rest or unrest, holds the reins of the car of 
 progress. 
 
 The story of the Constitution and its growth has 
 been told in many fashions and in many forms; but 
 the tale that is told has no ending, for the growth 
 of the Constitution is co-extensive with the growth 
 of the national life. Beginning even as the nation 
 
 3 
 
4 Story of the Constitution 
 
 began, weak and diffident, uncertain of its strength 
 and powers, the Constitution has grown with the 
 nation's growth and strengthened with its strength. 
 
 The Constitution is not solely the written instru- 
 ment which is contained within the compass of the 
 few brief pages which the " Fathers " elaborated in 
 their days and weeks of discussion in the convention 
 hall at Philadelphia in 1787; that document was but 
 the skeleton of the colossal constitutional figure of 
 to-day. The story of how the skeleton was clothed 
 with the living tissue of constitutional practice is 
 one of absorbing interest. Constitutions do not 
 grow of their own accord; they are not organisms in 
 which life finds lodgment. They are dead forms till 
 human action transforms them in accordance with 
 the will of those who put them into execution. So 
 the Constitution of the United States, as it came 
 from the hands of the " Fathers," was dead parch- 
 ment until men transmuted the written word by the 
 alchemy of human action. 
 
 That the Constitution is the result of compromise 
 is familiar to all, but there is no better way of 
 bringing to our minds a vivid realization of the 
 great achievements of the " Fathers " than by re- 
 viewing the conflicting opinions and tendencies of 
 the time, particularly as they found concrete expres- 
 sion in the men of the Convention and the questions 
 which confronted them. 
 
 The ten years immediately preceding the outbreak 
 of the Eevolution were filled with scarcely less 
 heated conflict than the years of actual war, but the 
 conflict was waged in a different spirit. Argument 
 and discussion were the forerunners of battles and 
 
"The Fathers" 5 
 
 sieges ; questions of government were fouglit out first 
 in the law courts and the public prints. James Otis, 
 Samuel and John Adams in Massachusetts; Dickin- 
 son in Pennsylvania; Dulaney in Maryland; and 
 Patrick Henry in Virginia were only the leaders in 
 whose train there followed a host of able and 
 learned disputants who discussed with unrivalled 
 skill the rights of the colonists and their relations 
 to the mother country.^ Political discussion was 
 not, however, limited to the question of the relation 
 of the King and Parliament to the colonies.^ The 
 colonists felt that their liberty was at stake, and not 
 only from the law of England but also from the 
 nature of man and of government they sought to 
 establish their right to life, liberty, and the pursuit 
 of happiness. The great degree of self-government 
 that had been enjoyed in all the colonies, and the 
 character of the social and political relations that 
 had perforce been developed in the settling of a new 
 country, had united to give a democratic complexion 
 to their lives and thoughts of which they themselves 
 had been little aware. Samuel Adams, Patrick 
 Henry, and, a little later, Thomas Paine stood forth 
 as the champions of this new spirit of democracy. 
 
 The period of discussion had enabled men to un- 
 derstand more clearly the great questions of govern-^ 
 ment and liberty. The typical eighteenth-century ' 
 view of the state of nature as man's primitive con- 
 dition, of the origin of society and of government in 
 contract and the consent of the governed, of the 
 
 ^ Cf. M. C. Tyler, The Literary History of the American Revo- 
 lution. 
 2 Cf. C. E. Merriam, American Political Theories, p. 41 ff. 
 
 ^ 
 
 ■^sc 
 
6 Story of the Constitution 
 
 limitation of the powers of government by the ob- 
 jects for which it was established, formed the essen- 
 tial elements of their theory of government. It was 
 in the main the theory of Locke that the colonists 
 followed; they were little influenced by French ideas 
 save in the single case of Montesquieu. A new phase 
 of their rights was, however, developed by the colo- 
 nists themselves; they claimed not only the rights 
 of Englishmen, as derived from the law of nature 
 and the great charters of liberty, but also the rights 
 that belonged to them as men — those inherent and 
 inalienable rights of man which they incorporated 
 in the Declaration of Independence and the Bills of 
 Eights.i 
 
 The years of the war added nothing to the ideas 
 already developed; men could not fight and theorize 
 too; their energies were consumed in the trials and 
 sacrifices of the Kevolution; it was a time when the 
 written word was less potent than bayonets and the 
 orator than bullets. Yet these same years gave a 
 practical experience in constitution making and state 
 building such as no other people had ever enjoyed. 
 Every State hastened to establish a constitution in 
 which the effort was made to guarantee the rights 
 so hotly advocated, and the Union that was no 
 stronger than " a rope of sand " owed its fatal 
 weakness to the zealous ardor in behalf of these 
 same rights. The Articles of Confederation came 
 into existence in the course of a struggle against 
 what the colonists regarded as unlawful oppression 
 
 iC/. Merriam, op. cit, p. 48. Georg Jellinek, The Declara- 
 tion of the Rights of Man and of Citizens, p. 78 ff. Translated 
 by Max Farrand. 
 
"The Fathers" 7 
 
 on the part of a superior power. Union was sought 
 to throw off this yoke of oppression, and the memory 
 of King and Parliament was still too vivid for them 
 to run the risk of losing any of their hard-won 
 liberty and freedom by establishing a strong central 
 authority. Time had not yet forced upon them the 
 unwilling conclusion that strength in government 
 was necessary to liberty, and a strong union to in- 
 dependence; that, in the words of Washington, 
 " influence is not government." ^ 
 
 The years immediately following the conclusion of 
 peace are rightly called the " Critical Period of 
 American History." With the successful termina- 
 tion of the Eevolution, the spirit of patriotism) 
 flagged; the zeal that had animated the earlier parti 
 of the struggle gave place to a spirit of indifference/ 
 to national welfare. Particularism and State pride 
 waxed strong. The Congress of the Confederation 
 might command requisitions to its heart's content, 
 but not a penny could it compel any State to pay 
 into the treasury; the powers conferred upon it were 
 large, but the means for their enforcement were ut- 
 terly inadequate. The pressure of a foreign foe once 
 removed, the centrifugal forces of disunion were let 
 loose. The Confederation was regarded as having 
 served its purpose. By it the States had attained 
 their independence, but independence once secured, 
 there was no longer any reason why their freedom 
 should be lessened by demands made upon them from 
 a source so little connected with their every-day lives, 
 and the failure of every State to live up to the 
 
 1 F. S. Oliver, Alexander Hamilton: An Essay on American 
 Union, p. 100. 
 
8 Story of the Constitution 
 
 obligations imposed upon it by Congress became 
 notorious.^ 
 
 Such a course on the part of the States soon 
 brought the representatives of the enfeebled central 
 government into disrepute at home and abroad. 
 Foreign nations looked for the speedy dissolution of 
 so unstable a union, and were unwilling to engage 
 themselves with a government which gave such slight 
 assurance of permanency, while at home men talked 
 of withdrawal and the establishment of separate con- 
 federacies. A pressing source of weakness in the 
 Confederation sprang from the lack of power on the 
 part of Congress to regulate commerce either between 
 the States or with foreign nations ; in the absence of 
 this power, the natural jealousies and animosities of 
 the individual States soon found expression in vexa- 
 tious restrictions and deterrent imposts. 
 
 The need of mutual understandings and common 
 regulations was early apparent to men like Wash- 
 ington and Madison in Virginia, and Hamilton in 
 New York. First Maryland and Virginia, then the 
 five States represented at the Annapolis Convention, 
 deliberated upon the perplexing and ruinous condi- 
 tions of commercial relations but in vain, for these 
 were conditions that could be settled only by com- 
 mon action since they involved common interests. 
 The prospect was gloomy indeed. The craze of paper 
 money had swept over the States and credit had been 
 ruined ; Shays's rebellion was in full swing and Con- 
 gress seemed powerless to crush it. The dispute 
 with Spain over the free navigation of the Missis- 
 
 ^Cf. John Fiske, The Critical Period of American History, 
 p. 90 ff. 
 
"The Fathers" 9 
 
 sippi had become critical ; the Southern States threat- 
 ened secession and a return to British allegiance if 
 the Mississippi were given up, while the Northern 
 States were of a mind to secede if the river were not 
 closed for twenty-five years in return for a com- 
 mercial treaty with Spain.'^ In the face of these 
 difficulties and the impotence of Congress to cope 
 with them, the need of action far beyond the powers 
 of the commissioners gathered at Annapolis was 
 clearly evident. Hamilton drafted an address which 
 set forth the need of a general convention of all the 
 States to consider other than commercial questions, 
 and which recommended to the States that they should 
 appoint delegates to a convention to be held in Phila- 
 delphia on the second Monday of the following May, 
 " to take into consideration the situation of the 
 United States," and " to devise such further pro- 
 visions as shall appear to them necessary to render 
 the Constitution of the Federal Government adequate 
 to the exigencies of the Union." ^ The new conven- 
 tion was not merely to regulate commerce but was 
 to undertake a revision of- the whole government of 
 the Union. The Congress of the Confederation could 
 not disregard the call of the Annapolis Convention. 
 A failure to sanction it would only forfeit public 
 confidence still further, while the alarm of Shays's 
 rebellion and the desperate condition of the Con- 
 federation were urgent factors in inducing the 
 
 1 Cf. Fiske, op. dt., pp. 208-211 ; A. C. McLaughlin, The Con- 
 federation and the Constitution, pp. 91-100; Oliver, op. dt., p. 
 140. 
 
 2 Documentary History of the Constitution of the United 
 States of America, i., 5. 
 
lo Story of the Constitution 
 
 Congress to issue a call for a convention to meet 
 at the same time and place " for the sole and express 
 purpose of revising the Articles of Confederation." ^ 
 The impression rapidly gained ground that this 
 was the last chance for a permanent union. Should 
 the Convention fail to achieve its purpose, those 
 bonds of union, established however insecurely since 
 Bunker Hill and the Declaration of Independence, 
 seemed destined to be dissolved. With the dissolu- 
 tion of the Union in prospect, the States chose men 
 of the highest character and achievements to repre- 
 sent them, and it is not an idle boast to proclaim 
 this assembly one of the most distinguished bodies 
 that has ever met for political purposes. A review 
 of the names of the members shows that scarce a State 
 was without its representative of national fame, and 
 for the most part they were the men of the revolution- 
 ary epoch, gathered together to reap the final fruits of 
 that memorable contest. 
 
 Massachusetts found fit representatives of her vir- 
 tues and her learning in Eufus King, a lawyer who 
 might "with propriety be ranked among the Lumi- 
 naries " of that age ^ ; in Elbridge Gerry, the success- 
 ful merchant who cherished "as his first virtue, a 
 love for his Country." Eoger Sherman, man of the 
 people, shoemaker, almanac-maker, and judge, whose 
 heart was as good as his head, and Oliver Ellsworth, 
 Chief Justice of the Supreme Court of the State, have 
 made the part of Connecticut in the Convention 
 
 ^Doc. Hist., i., 8. 
 
 2 The American Historical Review, iii., 310-334, contains the 
 notes of William Pierce, a member of the Convention from 
 Georgia. The quotations and most of the characterizations of 
 members are taken from them. 
 
"The Fathers" n 
 
 justly famous, while Hamilton from New York was 
 recognized as the most brilliant man of the Conven- 
 tion and of the country. William Paterson of New 
 Jersey, " a Classic, a Lawyer, and an Orator," was 
 the kind of man " whose powers break in upon you, 
 and create wonder and astonishment " ; he is best 
 known as the proposer of the " New Jersey plan " 
 and the defender of the equality of the States. 
 Pennsylvania sent more delegates than any other 
 State and among them were not less than four men 
 of lasting fame. Benjamin Franklin, diplomat, man- 
 of-letters, scientist, whom " the very heavens obey," 
 was, next to Washington, America's most conspicuous 
 figure; the Morrises, Eobert, the financier of the 
 Revolution, and Gouverneur, the master of style, to 
 whom we owe the literary finish of the Constitution, 
 were little less conspicuous. For the fourth, James 
 Wilson, the rugged Scot, who drew attention " not 
 by the charm of his eloquence, but by the force of 
 his reasoning," ranked " among the foremost in legal 
 and political knowledge." Little Delaware sent 
 John Dickinson, " famed through all America, for 
 his Farmer's Letters " ; while Maryland's Attorney *" / 
 General, Luther Martin, was the Convention's most] / 
 persistent and prolix supporter of the rights of thej 
 small States. 
 
 Virginia could rival Pennsylvania in the number 
 of her famous delegates. Washington, whose presence 
 in the Convention was the unqualified prerequisite 
 of its success, was unanimously chosen presiding 
 oflcer ; George Wythe, " confessedly one of the most 
 learned legal characters of the present age"; Mason, 
 able, experienced, convincing, and " undoubtedly one 
 
12 Story of the Constitution 
 
 of the best politicians in America"; Randolph, 
 Toung, handsome, and talented ; and finally Madison, 
 /small and unprepossessing, with no pretence of ora- 
 I tory, but "the affairs of the United States, he 
 \ perhaps, has the most correct knowledge of, of any 
 man in the Union"; "he blends together the pro- 
 found politician with the scholar"; thoughtful and 
 earnest, his labors in the Convention in behalf of the 
 Constitution surpass those of any one man. South 
 Carolina was the only one of the remaining States 
 whose representatives have achieved a lasting place 
 in our history ; John Rutledge and the two Pinckneys 
 may well close the roster of the famous names of the 
 Convention. 
 
 Some distinguished names, however, are missing, 
 and we wonder what might have been the result had 
 Jefferson, instead of courting Republican France by 
 his republican sympathies, been present to champion 
 the cause of the States against the nation ; or Patrick 
 Henry, with his fiery eloquence in favor of State 
 sovereignty. What infiuence might not the aristo- 
 cratic John Adams, with his leanings toward mon- 
 archy and his distrust of the people, have exerted, had 
 he been in the Convention perchance to second and 
 support the strongly centralized plan of Hamilton? 
 r The success of the Revolution had placed beyond 
 j the possibility of cavil the right to life, liberty, and 
 \ the pursuit of happiness. The question now at issue 
 ( was under what form of government these rights 
 I could be best secured; it was yet to be determined 
 how the advantages to be derived from a union of 
 1 all the States could be combined with the security 
 of life and property enjoyed under the government of 
 
"The Fathers" 13 
 
 each. The first question which confronted the mem- 
 bers of the Convention when once assembled was that 
 raised by the resolution of Congress under which 
 they had gathered. Should they adhere to the limi- 
 tation set by that resolution and restrict themselves 
 to an amendment of the Articles of Confederation, 
 or should they strike out boldly and do what seemed 
 to them best for the general welfare? Should they 
 disregard the Congress and its resolution and, act- 
 ing as the representatives of the people, produce an 
 instrument of government suited to the country's 
 needs? The question was crucial, was revolutionary, 
 but they were undaunted; believing that no amend- 
 ment of the Articles of Confederation would sufS.ce, 
 they adopted a resolution declaring " that a national 
 government ought to be established consisting of a 
 supreme Legislative, Judiciary, and Executive." ^ 
 In the discussion of this resolution the difference be- 
 tween a federal and a national government was 
 clearly stated by Gouverneur Morris, who declared 
 that the former was " a mere compact resting on the 
 good faith of the parties " ; the latter had " a com- 
 plete and compulsive operation." ^ 
 
 At a later stage of the proceedings when the 
 authority of the Convention to take this radical ac- 
 tion had again been raised, Eandolph asserted baldly 
 that " when the salvation of the Republic was atl 
 stake, it would be treason to our trust, not to pro-J 
 pose what we found necessary." ^ To this Hamilton 
 
 1 Doc. Hist, iii., 162, 
 
 " Ibid., iii., 22. Notice the difference in meaning in the word 
 " federal " between then and now. 
 ^Ibid., iii., 136. 
 
14 Story of the Constitution 
 
 agreed. "The States," he said, "sent us here to 
 provide for the exigencies of the Union. To rely on 
 any plan not adequate to these exigencies, merely 
 because it was not clearly within our powers, would 
 be to sacrifice the means to the end." ^ 
 
 To justify the revolutionary character of this ac- 
 tion there was inserted in the Constitution the clause 
 providing that "the ratification of the conventions 
 of nine States shall be sufficient for the establishment 
 of this Constitution between the States so ratifying 
 the same," ^ and furthermore the ratification was to 
 be by conventions in each State, especially elected 
 for the purpose, and not by the State legislatures. 
 The Constitution should rest upon the people, not 
 upon the States. 
 
 The decision that a national government ought to 
 be established, consisting of a supreme legislative, 
 executive, and judiciary, did not, however, settle the 
 question as to the nature of the new Union. From 
 the outset there were two well-defined and conflicting 
 opinions on the subject. The small States clung tena- 
 ciously to the principle of the Articles of Confedera- 
 tion by which each State had an equal voice with 
 every other State; the large States were equally de- 
 termined to put an end to a condition of affairs in 
 which their wealth, size, and importance told for 
 L-nothing. From this struggle of the small and the 
 large States there resulted the first of the great com- 
 promises of the Constitution.^ The contest centred 
 
 1 Doe. Hist., iii., 139. 
 
 2 Constitution, Art. VII. 
 
 3 For a detailed account of the compromises, cf. Fiske op. cit., 
 pp. 250-267; McLaughlin, op. cit, pp. 221 ff; Max Farrand, 
 
"The Fathers" 15 
 
 around the "Virginia" and the "New Jersey " plans.^ 
 The former, elaborated by the delegates from that 
 State and presented by Randolph, provided for a 
 union in which the equality of the States as sovereign 
 political bodies should give way to an inequality 
 based upon wealth and population, in which powers 
 as well as rights should be conferred upon the cen- 
 tral authority; the latter, proposed by Paterson of 
 New Jersey, sought to maintain the authority of the 
 States as it had existed under the Articles of 
 Confederation. Large powers, to be sure, were to 
 be lodged in the new government, but the funda- 
 mental weakness would still remain; the government 
 would still lack the power of acting directly upon 
 individuals and could proceed only against the States. 
 Any attempt, as Madison had showed, to coerce a 
 State, " would look more like a declaration of war, 
 than an infliction of punishment." ^ The issue was 
 squarely presented. Lansing of New York declared 
 that the plan of Mr. Paterson " sustains the sov- 
 ereignty of the respective States, that of Mr. Ran- 
 dolph destroys it." ^ Paterson himself asserted that 
 the Convention had "no power to vary the idea of 
 equal sovereignty," * and that he " had rather sub- 
 mit to a monarch, to a despot, than to such a fate." ^ 
 Wilson, on the other hand, contrasted the two plans 
 
 The Com/promises of the Constitution, in the American His- 
 torical Review, April, 1904; and Alexander Johnston, American 
 Political History, ii., 101 if. 
 
 1 Doc. Hist., iii., 17-20 and 125-128. 
 
 2 Gaillard Hunt, The Writings of Madison, iii., 66. 
 ^Doc. Hist., iii., 128-129. 
 
 *Ibid., iii., 131. 
 '^Ihid., iii., 99. 
 
1 6 Story of the Constitution 
 
 point by point and always in favor of the Virginia ^ 
 plan,i and Randolph saw that " the true question is I 
 whether we shall adhere to the federal plan, or in- 
 troduce the national plan," which would be a resort 
 " to a national legislation over individuals." ^ Ham- 
 ilton took advantage of the opportunity to express 
 his disapproval of both plans and to " point out such 
 changes as might render a national one efficacious," ^ 
 and Madison argued at length against the evil? of 
 the New Jersey plan.* 
 
 The smaller the State, the more violent, apparently, 
 was the opposition to a national government and a 
 loss of equality. Luther Martin of Maryland pro^ 
 tested that he " would rather confederate with any^ 
 single State, than submit to the Virginia plan," ^ and 
 Bedford of Delaware did not hesitate to go to the 
 extreme of proclaiming that the small States, rather 
 than submit to the compulsion of the large States, 
 would " find some foreign ally of more honor and 
 good faith," who would " take them by the hand and 
 do them justice." ^ 
 
 The compromise by which such widely divergent 
 views were reconciled is generally known as the 
 " Connecticut compromise." Connecticut had from 
 its earliest history made use of the dual system of 
 representation in its legislature, one house represent- 
 ing the towns as equal units, and the other the 
 
 '^Doc. Hist., iii., 132 ff. 
 ^Ibid., iii., 137. 
 3 Ibid., iii., 138 #. 
 *Ibid., iii., 151 ff. 
 
 ■^ Yates, Secret Proceedings and Debates of the Federal Con- 
 vention, p. 194. 
 
 « Doc. Hist., iii., 261. 
 
"The Fathers" 17 
 
 people,^ and when the debate arose in the Convention 
 early in June, on the principle of representation to 
 be followed in the two houses, Sherman of Connecti- 
 cut proposed that " the proportion of suffrage in 
 the first branch should be according to the respective 
 numbers of free inhabitants; and that in the second 
 branch, or Senate, each State should have one vote 
 and no more." ^ More than two weeks later, after 
 the New Jersey plan had been rejected and the next 
 day after the discussion had grown so violent that 
 Franklin had proposed that henceforth the Conven- 
 tion should open with prayer, Dr. Johnson, another 
 of Connecticut's representatives, expressed the opin- 
 ion that " as in some respects the States are to be 
 considered in their political capacity, and in others 
 as districts of individual citizens, the two ideas em- 
 braced on different sides, instead of being opposed 
 to each other, ought to be combined; that in one 
 branch the people ought to be represented; in the 
 other, the States."^ On the same day, Oliver Ells- 
 worth gave expression to similar views. " We were 
 partly national; partly federal. The proportional 
 representation in the first branch was conformable 
 to the national principle and would secure the large 
 States against the small. An equality of voices was 
 conformable to the federal principle and was neces- 
 sary to secure the small States against the large." * 
 
 ^ Parrand, Compromises of the Constitution in Am. Hist. Rev., 
 note 1, p. 480, rejects this explanation of the origin of the 
 designation of the compromise. 
 
 ^Doc. Hist., iii., 101. 
 
 ^Ihid., iii., 237. 
 
 *Ibid., iii., 245-246. 
 
>-i- 
 
 1 8 Story of the Constitution 
 
 On this middle ground he trusted a compromise 
 would take place. Whether or not Connecticut's ex- 
 ample and representatives are responsible for the 
 compromise, at least their proposals contained the 
 principle upon which agreement was finally reached. 
 Proportional representation in the lower house met 
 in part the demand of the large States for adequate 
 recognition of their size; equality of representation 
 in the Senate soothed the wounded pride of State 
 sovereignty and gave to the small States reasonable 
 ground of security. Such in substance was the re- 
 port of the Committee that had been appointed when 
 the Convention reached a deadlock on this question ; 
 such to-day is the principle of representation in the 
 t5?o houses of our national legislature. 
 \ The first great conflict of the Convention then was 
 a struggle between the large States and the small, 
 between a growing spirit of nationalism and a tena- 
 cious desire for local independence, and after long 
 and bitter contests victory rested entirely with neither 
 party, but had been won by those men in the Con- 
 vention who desired a strong central government 
 resting upon a different foundation from the Articles 
 of Confederation, but who were nevertheless unwill- 
 ing to leave the small States without effectual means 
 for the protection of the rights to be enjoyed under 
 the new form of union. 
 
 The very terms of the compromise by which a 
 disruption of the Convention had been prevented 
 carried with them the seeds of further controversy. 
 Equal representation in the Senate seemed a suffi- 
 cient guarantee of the rights of the small States, 
 but their sense of security was measurably lessened 
 
"The Fathers" 19 
 
 when the Convention agreed that the members of the 
 Senate should vote per capita and not by States. 
 The question, moreover, of the proportion of repre- 
 sentation in the lower house presented difficulties 
 scarcely less acute than the fundamental problems 
 which had already been settled. 
 
 The necessity of expansion toward the West was 
 evident, and the probability of the formation of new 
 States caused no little anxiety to some members of 
 the Convention. Gouverneur Morris desired the At- 
 lantic States to " keep a majority of votes in their 
 own hands " ^ in order that they might not be con- 
 trolled by the West. " If the Western people get 
 the power into their hands they will ruin the At- 
 lantic interests. The back members are always the 
 most averse to the best measures." ^ Gerry and King 
 proposed " to secure the liberties of the States already 
 confederated " by prohibiting the number of repre- 
 sentatives in the lower house from the new States 
 ever exceeding that of the old States.* Mason andl 
 Madison, however, represented the better attitude in 
 their vigorous defence of the right of the future ( 
 States to be admitted to the Union on terms of. 
 equality with the older States,* and in this the Con- 
 vention supported them. Wilson spoke after then 
 manner of the true democrat when he declared that^ 
 " the majority of people wherever found ought in all 
 questions to govern the minority." ^ 
 
 ^Doc. Hist., iii., 305. 
 2 Ibid., iii., 312. 
 »Ibid., ill., 332. 
 *Ibid., ill., 307 and 314. 
 ^Ibid., ill., 330. 
 
20 Story of the Constitution 
 
 While the origin of the first fundamental difference 
 of opinion among the members of the Convention 
 grew out of political considerations, the second 
 ground of divergence was social in its nature. In 
 the discussion of the question of representation in 
 the two houses, Madison had already expressed it as 
 his opinion that the antithesis of the States was due 
 not to their difference of size, but to climate and to 
 their having or not having slaves.^ Charles Pinck- 
 ney, too, had based the real distinction between the 
 States upon the divergent economic interests of 
 North and South.^ A sharp line of distinction be- 
 gan to be drawn between these two sections, the in- 
 terests of which Butler declared " to be as different 
 as the interests of Eussia and Turkey." ^ 
 
 In determining the number in accordance with 
 which representation in the lower house should be 
 apportioned, the question at once arose whether the 
 slaves should be counted as a part of the population. 
 The fundamental notion of the end and aim of all 
 government was the preservation of property; the 
 wealth, therefore, of the respective States should be 
 .-taken into account in any scheme of representation. 
 In the South the problem was complicated by the 
 existence of a peculiar kind of wealth, for slaves 
 were both property and human beings. Butler and 
 General C. C. Pinckney insisted that the blacks should 
 be included equally with the whites in the rule of 
 representation, and not at a three-fifths ratio as pro- 
 posed. " An equal representation ought to be al- 
 
 1 Doe. Hist., iii., 254. 
 ^Ihid., iii., 263. 
 ^lUd., iii., 639. 
 
"The Fathers " 21 
 
 lowed for them," said Butler, " in a government 
 which was instituted principally for the protection of 
 property, and was itself to be supported by prop- 
 erty." ^ Wilson, on the other hand, could see no 
 reason why the blacks should be admitted at a three- 
 fifths ratio. " Are they admitted as citizens? Then 
 why are they not admitted on an equality with white 
 citizens? Are they admitted as property? Then why 
 is not other property admitted into the computation? 
 These were difficulties however which he thought 
 must be overruled by the necessity of compromise." ^ 
 The terms of the compromise resulted from a sug- 
 gestion of Gouverneur Morris who " moved to add 
 to the clause empowering the Legislature to vary 
 the Representation according to the principle of 
 wealth and number of inhabitants, a proviso that 
 taxation shall be in proportion to Representation." * 
 This was amended to apply only to direct taxes.* 
 Such a provision was a two-edged sword, but no 
 logical objection to it could be made. If the slaves 
 were to be counted in determining representation, 
 the slave-holding States must pay the bill in direct 
 taxes, and the same would be true of the new, but 
 poor. States of the West. The South was willing to 
 run the risk, and it was determined that " representa- 
 tives and direct taxes shall be apportioned among 
 the several States . . . according to their respective 
 numbers, which shall be determined by adding to 
 the whole number of free persons, including those 
 
 1 Doc. Hist., iii., 309. 
 2/6id., iii., 317. 
 3 Ihid., iii., 319. 
 */6id., iii., 320. 
 
2 2 Story of the Constitution 
 
 bound to service for a term of years, and excluding 
 Indians not taxed, three-fifths of all other persons." ^ 
 The antagonism of the Eastern and Southern 
 States was not allayed by the compromise on repre- 
 sentation, but continued until it was settled, so far 
 as the work of the Convention was concerned, by a 
 compromise, the effects of which are just beginning 
 fully to be comprehended. The Eastern States had 
 become convinced of the necessity of the regulation 
 of commerce by the general government, and their 
 conviction was shared to a limited degree by the 
 Middle States and Virginia. The passage of a Navi- 
 gation Act by Congress appeared to them highly 
 desirable. Georgia and South Carolina on the other 
 hand, by reason of their rice and indigo culture, 
 deemed it absolutely essential to their welfare that 
 the importation of slaves should not be prohibited. 
 C. C. Pinckney accordingly declared that a vote to 
 abolish the slave trade would be received by South 
 Carolina as " a polite way of telling her that she 
 was not wanted in the Union." ^ It was necessary 
 to retain the support of these two States if the Con- 
 stitution was to have the slightest hope of adoption. 
 Fortunately, the belief was prevalent that not only 
 the importation of slaves, but slavery itself, would 
 soon die out. It had practically disappeared from 
 the Northern States, and Whitney's invention had 
 not yet raised cotton to the position of king, had not 
 yet made it the great " staple product " which de- 
 manded slavery as an economic necessity. Accord- 
 ingly Congress was given the power "to regulate 
 
 1 Constitution, Art. I., sec. 2. 
 2Fiske, cp. cit., p. 263. 
 
"The Fathers" 23 
 
 commerce with foreign nations, and among the sev- 
 eral States, and with the Indian tribes," ^ but " the 
 migration or importation of such persons as any of 
 the States now existing shall think proper to admit, 
 shall not be prohibited by the Congress prior to the 
 year one thousand eight hundred and eight, but 
 a tax or duty may be imposed on such importation, 
 not exceeding ten dollars for each person." ^ 
 
 Marshall first seized on the possibilities of the so- 
 called " commerce clause " of the Constitution, and 
 successive courts have not been slow to make it keep 
 pace with our modern commercial and industrial 
 evolution. In more recent times both Congress and 
 the Executive have been seeking new worlds for the 
 Federal Government to conquer; no provision of, the 
 Constitution is being more zealously scrutinized than 
 this in the search for means to cope with the great 
 industrial problems of the day. Upon the slender 
 thread of commerce " among the several States," 
 judicial decisions and legislative enactments have 
 suspended a weight of federal powers that must have 
 snapped any less elastic provision, and the end is 
 not yet. 
 
 No subject before the Convention drew forth more 
 differences of opinion than the character of the 
 Executive ' ; whether it should be single or plural, 
 what powers should be conferred upon it, and how it 
 should be chosen were all objects of the liveliest 
 
 1 Constitution, Art. I., sec. 8. 
 
 2 Const., Art. I., sec. 9. 
 
 ' Farrand, Compromises, in Am. Hist. Rev., p. 485 ff, treats 
 of the compromise respecting the Executive at some length and 
 to him I owe much that is here said. 
 
24 Story of the Constitution 
 
 concern and the greatest diversity of opinion. No 
 less than thirty votes were taken concerning various 
 phases of the method of election alone. The dif- 
 ferences of opinion manifested over this question 
 divided the members along new lines. We have seen 
 large States and small striving for supremacy, we 
 have witnessed North and South diverge along lines 
 destined continually to divide them till the signifi- 
 cance of Mason and Dixon's line was wiped out by 
 blood. Now, however, in the character and choice 
 of the Executive the more fundamental distinction 
 between aristocracy and democracy makes itself felt. 
 A direct election of the Executive by the people 
 found no favor in the eyes of men whose faith in 
 the mass of mankind had been so sorely tried by 
 the events of recent years, whose inherent regard 
 for birth and breeding had been greatly strength- 
 ened by the license and excesses of the democratic 
 mob, and whose conservative instincts and traditional 
 respect for rights of property had been greatly 
 alarmed by fiat money and by Shays's rebellion. 
 Some indirect form of election seemed to them neces- 
 sary to preserve the whole government from ultimate 
 destruction from too much democracy. It was felt, 
 however, that an election by the people would give 
 an advantage to the large States; even under the 
 electoral system in which each State was to have a 
 number of electors equal to the number of its 
 Senators and Eepresentatives, the advantage would 
 still remain with the large States; the terms of the 
 compromise only become evident when we know that 
 it was supposed that in a majority of cases no elec- 
 tion would result because of the failure of any one 
 
" The Fathers " 25 
 
 candidate to secure a majority; in that case it was 
 first proposed that the election should fall to the 
 Senate in which the States were equally represented. 
 Here the advantage would be with the small States. 
 Because of the many objections that arose to giving 
 additional powers to the Senate, it was finally de- 
 cided to Ijestow this power upon the House of Rep- 
 resentatives, but with the provision that each State 
 should have only a single vote. Thus was the prin- 
 ciple of the compromise retained and the one con- 
 spicuous failure of the Convention's work completed. 
 
 The main features of the form of government 
 elaborated in the Convention are familiar. Through^ 
 out the whole structure ran the principle of the ' 
 separation of the powers of government and the sys- 
 tem of checks and balances. The principle was adopted 
 that all matters which were of common interest 
 should be entrusted to the Federal Government, while I 
 the far larger field of purely local interests should ' 
 be reserved by the States. " The task," said Madi- 
 son, " was to draw a line of demarcation which 
 would give the General Government every power 
 requisite for general purposes, and leave to the States 
 every power which might be most beneficially ad- 
 ministered by them." 
 
 The power of the Federal Government has grown 
 steadily; more and more the National Government 
 has been brought into contact with the ordinary af 
 fairs of daily life. The principal means through 
 which this growth of power has taken place has! 
 not been the constitutional method of amendment, 
 which, since the infancy of the nation, has been pos- 
 sible only under the stress of civil war, but has been 
 
26 Story of the Constitution 
 
 the power of "interpretation." The faculty of in- 
 /terpreting the law has achieved a peculiar prominence 
 in our system through the existence of a written 
 I constitution which is the supreme law of the land; 
 it is the duty of the courts to test all laws by the 
 standard of the Constitution, and in doing so they 
 must determine what, under all the circumstances, 
 the Constitution means. Interpretation must in the 
 long run reflect the life of the people and give ex- 
 pression to their lasting convictions or law will be- 
 come the oppressor instead of the protector of rights ; 
 back of the legal formulas lie the forces of society 
 which infuse into them the breath of life. 
 
 That such has been the case in our own national 
 life can scarcely be questioned when we reflect upon 
 the transformations wrought by steam and electricity ; 
 railroads and telegraphs have often been slender 
 bonds, but without them we may easily picture a 
 land of many unions instead of one. Not only has 
 a single union of the whole country been made pos- 
 sible by these material forces, but also the life of 
 the people has been brought closer together ; common 
 interests have multiplied as rapidly as have the 
 means of communication. It is, therefore, a natural 
 result of such growth that we have witnessed a like 
 growth in that part of the Constitution dealing with 
 the regulation of common interests. Interpretation 
 is but the synonym of growth and expansion under 
 conditions which have multiplied the common ele- 
 ments of our national life. 
 
II 
 
 Alexander Hamilton. Growth through 
 Administrative Organization 
 
 87 
 
ALEXANDER HAMILTON 
 
 1757. Jan. 11. Born on the island of Nevis, West Indies. 
 1769. Clerk in office of Nicholas Cruger. Wrote de- 
 
 scription of a hurricane. 
 
 1772. October. Arrived in Boston. 
 
 1773. ' Entered King's College, now Columbia Univer- 
 
 sity. 
 Visited Boston. 
 July 6. First public speech, made at the "Meeting in 
 the Fields." 
 1774-5 Wrote A Full Vindication and The Farmer 
 
 Refuted, which were attributed to Jay and 
 Livingston; also other pamphlets. 
 
 1776. Given command of New York artillery com- 
 
 pany. 
 
 1777. Appointed staff officer and Military Secretary 
 
 to Washington. 
 
 1780. Letter to James Duane on national bank. 
 
 1781. Feb. 16. Break with Washington. 
 
 Brevetted Colonel at Yorktown. 
 
 1782. Delegate to Continental Congress. 
 Admitted to the bar. 
 
 1786. Attended Annapolis Convention. Drew up ad- 
 
 dress. Elected to State Assembly. 
 
 Delegate to Philadelphia Convention. 
 
 Withdrew temporarily from Convention. 
 
 Affixed name to Constitution. 
 
 Delegate to last Continental Congress. 
 
 Federalist written. 
 
 Member of the New York State Convention. 
 
 Appointed first Secretary of the Treasury. 
 
 Reports on the Public Credit. 
 
 Financial policy accepted: 
 
 National Bank established. 
 
 Quelled Whiskey Rebellion. 
 
 Resigned from Secretaryship. 
 
 Friendship with Adams broken. 
 
 Made Inspector-General with rank of Major- 
 General. 
 
 Promoted to Commander-in-Chief. 
 
 Favored Jefferson's election over Burr. 
 
 Charged with Burr's defeat for Governor of 
 New York. 
 
 Duel with Burr at Weehawken. 
 
 Died. 
 
 28 
 
 1787, 
 
 
 
 
 June 
 
 29. 
 
 
 Sept. 
 
 17, 
 
 1787-: 
 
 88. 
 
 
 1787- 
 
 88. 
 
 
 1788. 
 
 
 
 1789. 
 
 Sept. 
 
 
 1790. 
 
 
 
 1791. 
 
 
 
 1794. 
 
 
 
 1795. 
 
 Jan. 
 
 31. 
 
 1798. 
 
 
 
 1799. 
 
 
 
 1800. 
 
 
 
 1803. 
 
 
 
 1804. 
 
 July 
 
 11. 
 
 
 July 
 
 12, 
 
II 
 
 Alexander Hamilton. Growth Through 
 Administrative Organization 
 
 THE life of Alexander Hamilton illustrates as does 
 no other in American history the truth that the 
 essence of government lies in the spirit of the gov- 
 ernors, that its real character is determined by that 
 of the men who administer it, and that its form 
 and direction reflect the will and desire of those 
 entrusted with the guidance of its destinies. Auto- 
 cratic governments are confessedly the image of the 
 autocrat, and the likeness is striking or faint in 
 proportion as his will dominates those who serve 
 him. The same is true of governments that are con- 
 stitutional in form ; the opportunity for the free play 
 of a strong personality upon the most fundamental 
 relations of government still exists. Where there is 
 a written and rigid constitution, where the form of 
 government is carefully elaborated and committed 
 with due solemnity to a written document, and where 
 this is done with the settled determination to fix the 
 nature and character of the State to be organized, it 
 may be thought that the influence of the individual 
 
 will be all but eliminated, that only within the nar- 
 
 29 
 
30 Story of the Constitution 
 
 row limits of the written specifications can he pursue 
 his circumscribed course, with here and there a slight 
 adjustment of the parts of the governmental ma- 
 chine, to mark his share in the worJi. Such at least 
 has been the attitude taken towards our own Consti- 
 tution by the multitudes who have made of it a 
 political fetish, and who have refused to see that an 
 institution is dependent for its character upon the 
 men who give it reality in the world of events. 
 
 The framers of the Constitution were well aware 
 that the true nature of the government to be insti- 
 tuted and of the Union to be created by the Consti- 
 tuition was yet to be determined. The compromises 
 of the Convention had produced a government "partly 
 national and partly federal," and there were grave 
 fears that it could not be made to work at all. No 
 man felt sure what the result would be. Hamilton, 
 however, foresaw the possibilities of growth that 
 stretched out before the national government.^ Above 
 all others he felt the need of a strong central gov- 
 ernment and more than all others he contributed to 
 make the new Union a nation.^ Hamilton's part in 
 fashioning the mere outward form of government 
 was small; his great services lay in the influence he 
 exerted upon its adoption through the masterly ex- 
 position in the papers of the Federalist and in the 
 determining influence he exercised over the years of 
 its infancy, when, as Secretary of the Treasury, his 
 ruling spirit dominated every branch of the govern- 
 ment and for the time being set at naught the care- 
 
 1 Cf. Works, ed. by H. C. Lodge, i., 423. 
 
 ^Cf. F. S. Oliver, Alexander Hamilton, p. 186-187. 
 
Alexander Hamilton 31 
 
 fully devised system of the separation of the powers 
 of government.^ His mastery of the legislative 
 branch of the government was little less complete 
 than his ascendancy over Washington,^ and from 
 his administrative direction there sprang up a tradi- 
 tion of strength in the government which all the 
 fervor of the Jeffersonian triumph could not over- 
 come. 
 
 The great passion of Hamilton's life was love of 
 an orderly direction in human affairs; mankind in 
 the mass he regarded as weak, and this weakness 
 demanded the strength of government if the human 
 race was to enjoy the blessings of liberty. A strong 
 government was necessary to restrain the natural 
 disorders of society, whatever the character of its 
 organization. Order and strength were inseparable 
 in all his thought of government; his practical ex- 
 perience had demonstrated that social disorder and 
 governmental weakness were correlative terms,* and 
 the verdict of history has confirmed his experience. 
 
 Hamilton was born on the little island of Nevis, 
 in the West Indies, on January 11, 1757.* His 
 father was James Hamilton of the Scotch Hamiltons, 
 honest, but unsuccessful, and his mother was a 
 French Huguenot. In his character we find the ele- 
 ments of both races ^ ; there is all the strength of 
 will, keenness of logic, and depth of penetration that 
 
 1 Cf. H. J. Ford, Rise and Growth of American Politics, p. 81. 
 
 2 Cf. Oliver, op. cit., pp. 73 and 262. 
 
 3 Cf. Works, v., 343. 
 
 *For the facts of Hamilton's life see the biographies by his 
 Bon, J. C. Hamilton, by H. C. Lodge, J. T. Morse, Jr., and W. 
 T. Sumner. 
 
 5 Cf. Morse, Life of Alexander Hamilton, i., 2. 
 
32 Story of the Constitution 
 
 may be accorded to the most typical of Scotch intel- 
 lects; side by side with these sterner qualities there 
 was an ease and grace of manner, a fluency of 
 speech, a gaiety and brightness of temperament, 
 and a lucidity of statement truly Gallic in its 
 nature. 
 
 The early death of his mother and the incapacity 
 of his father soon compelled the lad to shift for him- 
 self. At the age of thirteen we find him acting as 
 clerk for a certain Nicholas Cruger, of St. Chris- 
 topher, and despising the grovelling condition of a 
 clerk; so precocious was he that within a year he 
 was left in charge of the entire business while the 
 master made an extended trip to the Northern colo- 
 nies. His business career, however, was destined to 
 be of short duration. A hurricane that devastated 
 the island made such a deep impression upon the 
 sensitive youth that he wrote a description of it for 
 a local paper; the wonder and admiration of the 
 islanders were excited by the beauty of his language 
 and the vividness of his portrayal, and some of his 
 more prosperous relatives, doubtless at the instiga- 
 tion of the Rev. Hugh Knox, who had been his tutor, 
 determined that such unusual gifts should have an 
 opportunity for unhindered development, and in con- 
 sequence they decided to send him to the colonies 
 of the mainland to be educated. 
 
 Hamilton arrived in Boston in October of the year 
 1772, and after a short time spent at Elizabeth, N. J., 
 he matriculated at the early age of seventeen at 
 King's College, now Columbia University. It is an 
 interesting story which tells of the desire of young 
 Hamilton to enter the College of New Jersey at 
 
Alexander Hamilton 33 
 
 Princeton, and of his lack of success because of the 
 uncompromising attitude taken by the trustees 
 toward his desire to enter " upon the condition that 
 he might be permitted to advance from class to class 
 with as much rapidity as his exertions would enable 
 him to do." 
 
 The lad's work at King's College was pursued with 
 great success for the next two years, unhindered by 
 the growing spirit of political unrest. The repres- 
 sive measures enacted against the rebellious colony 
 of Massachusetts elicited the sympathy and active 
 co-operation of all the colonies. The spirit of united 
 action found its first expression in the Continental 
 Congress of 1774, and in the actual assistance ren- 
 dered Massachusetts in that trying year. The air 
 was alive with the breath of political arguments, and 
 that of King's College not least of all; its dis- 
 tinguished President, Dr. Miles Cooper, was loyal to 
 his King and Church and for his pains was almost 
 made to suffer the fate of many a less distinguished 
 Tory. His escape was due to the quickness of Ham- 
 ilton in aiding him to flee by a rear gate while the 
 mob was already clamoring at the front.^ It was no 
 doubt due to the influence of Dr. Cooper, as much 
 as to his own strong love of order and reverence for 
 tradition, that Hamilton at first inclined to the side 
 of established government; but a visit to Boston in 
 1774 and contact with the Patriots, whose zeal was 
 at fever heat, served to dispel all doubt from his 
 mind and to commit him unalterably to the Patriot 
 cause. 
 
 1 Morse, Life of Alexander Hamilton, i., 18. 
 
34 Story of the Constitution 
 
 It was almost immediately upon his return that 
 the chance came to display his new-born enthusiasm ; 
 being present on July 6th at a public meeting "in 
 the fields/' he listened with disgust to the speakers, 
 not so much at what they said as at what they left 
 unsaid, and when they had finished, this lad of seven- 
 teen, slight of frame and delicate of feature, the very 
 picture of youth, forgetful of self and mindful only 
 of the cause at stake, mounted the platform.^ The 
 crowd, too, apparently was dissatisfied with what it 
 had heard, for it greeted the stripling with the half- 
 mocking, half-favoring cry of " The Collegian ! Hear 
 the Collegian ! " Almost at the first sound of his 
 voice the throng was silenced; their hearts were 
 filled with the great emotion that stirred his own 
 bosom, and they forgot the childlike face and figure; 
 gazing with rapt attention at his eager countenance, 
 they seemed to feel in him the incarnation of those 
 new thoughts and feelings which the past ten years 
 had begotten. 
 
 The years from 1775 to 1785 were big with events 
 both in the country's history and in Hamilton's life. 
 His first public speech was soon followed by two 
 anonymous pamphlets. So able were they that the 
 authorship was commonly attributed to Jay and 
 Livingston. When it became known that Hamilton 
 was the author, he was immediately accepted as a 
 leader of the Patriot cause and in 1776 was placed 
 in command of a New York artillery company which 
 became in six months the model of the army for 
 discipline and efllciency. Because of ability dis- 
 
 ^Cf. Oliver, op. cit., pp. 27-28. 
 
Alexander Hamilton 35 
 
 played at the battles of Long Island and White 
 Plains and in the retreat across New Jersey, Wash- 
 ington appointed him a member of the general staff, 
 with the commission of lieutenant-colonel in the 
 Continental army. From the first he acted as sec- 
 retary, and for five years he was indispensable to 
 Washington. A warm personal friendship sprang 
 up between the two men which suffered but a single 
 break, that of 1781, when Hamilton, incensed at a 
 rebuke administered by Washington, resigned.'^ De- 
 sire for military glory doubtless played its part in 
 the resignation, for he soon took the field as a lieu- 
 tenant-colonel of the New York State troops, and 
 was fortunate enough to be present at the siege of 
 Yorktown, where he headed a storming party and 
 was brevetted colonel for bravery in battle. As the 
 war was practically at an end, Hamilton resigned 
 his commission and began the study of law in New 
 York, where his admission to the bar was soon 
 signalled by a rapid rise to the head of the pro- 
 fession. 
 
 By his marriage to Miss Elizabeth Schuyler in 1780 
 Hamilton had allied himself with the distinguished 
 Schuyler family, and this alliance brought him 
 friends and connections on a large scale. In No- 
 vember, 1782, he took his seat in the Continental 
 Congress, then sitting at Philadelphia, that same 
 Congress which, after its hasty flight from Philadel- 
 phia, sought refuge in Nassau Hall at Princeton in 
 June, 1783. Finding himself in a hopeless minority 
 and realizing that his efforts were futile, he resigned, 
 
 ^ Cf. Works, ix., 232, for Hamilton's account in a letter to 
 his father-in-law. 
 
36 Story of the Constitution 
 
 convinced above all things that the Congress and the 
 Articles of Confederation must be swept away be- 
 fore the country could be rescued from the anarchy 
 into which it was fast drifting. '^ Freed by his foreign 
 birth from the local attachments which made it so 
 difficult for most men to transfer any part of their 
 allegiance to a national government, he could per- 
 ceive the need of a strong central power. His sym- 
 pathies were ever national, not local; not New York 
 but America was the land of his adoption. " The 
 great idea, of which he was the embodiment, was 
 that of nationality." ^ 
 
 As early as 1780, in the midst of his arduous duties 
 as aide-de-camp to Washington, he had discovered 
 and disclosed in a letter to James Duane the de- 
 ficiencies of the Confederation and the way in which 
 these defects might be remedied.^ " The fundamental 
 defect," he wrote, " is a want of power in Congress." 
 " But the Confederation itself is defective, and re- 
 quires to be altered. It is neither fit for war nor 
 peace." The complete inefficiency of the Confedera- 
 tion in its conduct of the war was a matter of which 
 he could judge from practical experience ; the ill-fed 
 and ill-clothed troops bore convincing testimony to 
 his mind of the inability of an assemblage of diplo- 
 mats to carry on the struggle to a successful con- 
 clusion. The heart of the difficulty lay in the 
 disordered finances; the remedy could only be found 
 if the Confederation " should give Congress complete 
 sovereignty, except as to that part of internal police 
 
 ^Cf. Oliver, op. dt., pp. 125-126. 
 
 2 Lodge, Life of Alexander Hamilton, p. 282. 
 
 3 Cf. Works, i., 213. 
 
Alexander Hamilton 37 
 
 which relates to the rights of individuals," if 
 the direction of affairs should be placed in the 
 hands of competent individuals, and if a national 
 bank should be established. He outlined the plan 
 of such a bank and urged it as indispensable in 
 securing the certain revenues without which " gov- 
 ernment can have no power." 
 
 It was in this same letter that he gave expression to 
 a view that may be taken as typical of all his later 
 attitude toward constitutional interpretation. After 
 reproaching Congress for not having made better use 
 of its powers, he declared that " undefined powers 
 are discretionary powers, limited only by the object 
 for which they are given — in the present case the 
 independence and freedom of America." 
 * During the three years following his withdrawal 
 from Congress, Hamilton devoted himself to his pro- 
 fession and to the creation of a stronger national 
 sentiment among the people. When the opportunity 
 came to set in motion the train of events that he 
 hoped would lead to the consummation he so de- 
 voutly desired, he was not slow to avail himself of 
 it. He was the one to seize upon the Annapolis 
 Convention as the psychological moment to appeal 
 for concerted action to revise the moribund Articles 
 of Confederation in order to make them equal to the 
 exigencies of the Union.^ 
 
 The particularist spirit of independent statehood 
 was nowhere stronger than in the controlling faction 
 in Hamilton's own State. Governor Clinton and his 
 party dreamed of a great State of New York, inde- 
 
 1 C/. Oliver, oy. dt., p. 142. 
 
38 Story of the Constitution 
 
 pendent, free, and mighty by reason of its favorable 
 geographical position, and in this great State Clin- 
 ton, its governor, would be greater than ever he 
 might hope to be in a New York that was merely 
 one of a Confederation of thirteen. So in the As- 
 sembly of 1786, which chose the delegates to the 
 Constitutional Convention called to meet in Phila- 
 delphia in the following spring, all that Hamilton 
 could secure was his own appointment among the 
 delegates. The two other delegates chosen by the 
 Legislature were followers of Clinton, men given over 
 completely to the spirit of separatism, ready and 
 willing, even determined, to sacrifice the Union to the 
 selfish interests of individual statehood.^ Yates and 
 Lansing were men of unblemished personal character, 
 but the narrowness and selfishness of their political 
 views has condemned them forever. Yet there is a 
 crumb of comfort to be extracted from their action, 
 for their withdrawal from the Convention stands as 
 an everlasting proof of their belief that the Conven- 
 tion had started upon a revolutionary and wholly 
 unjustifiable course; that it had abandoned its sole 
 function of revising the Articles of Confederation. 
 To attempt to formulate a constitution upon any 
 other basis than that of the Articles, said Lansing, 
 was to do something to which the State of New 
 York would never consent, and had she realized that 
 such would be the action of the Convention, would 
 never have sent delegates.^ 
 
 Almost immediately after the opening of the Con- 
 
 1 Fiske, Critical Period, p. 225, characterizes them as " ex- 
 treme and obstinate Antifederalists." 
 
 2C/. Documentary History of the Constitution, iii., 129. 
 
Alexander Hamilton 39 
 
 vention there was presented to it for its determination 
 the question as to the kind of union that should be 
 contemplated in the new Constitution. The struggle 
 over this question centred round the " Virginia " and 
 " New Jersey " plans. There could be no question 
 which one of these Hamilton would prefer if com- 
 pelled to make choice. Among the many who at this 
 time showed distrust of the spirit of democracy, none 
 stands out more prominently than he. Though Sher- 
 man of Connecticut might say that " the people 
 should have as little to do as may be about the 
 Government," ^ and Gerry that " the evils we experi- 
 ence flow from the excess of democracy," ^ it was 
 Hamilton who had the courage to propose to the 
 Convention a scheme of government which left little 
 or no place for popular power, in which the Presi- 
 dent and Senate should hold office during good be- 
 havior and the governors of the States should be 
 appointed by the general government.* For five 
 hours Hamilton held the Convention under the sway 
 of his eloquence while he set forth his ideas on 
 government. A brilliant speech, which, says Fiske, 
 " while applauded by many, was supported by none." 
 Up to this time Hamilton had taken very little part 
 in the proceedings of the Convention. The reason 
 for this we do not know; perhaps it was that he 
 was sceptical of the result, and believed the Con- 
 vention incapable of agreement upon any plan that 
 
 1 Doc. Hist., iii., 26. 
 
 2 Ibid., iii., 26. 
 
 3 Ihid., iii., 149 ff., and Works, i., 350 If. Later in the proceed- 
 ings of the Convention Hamilton proposed a three years' term 
 for the President. 
 
40 Story of the Constitution 
 
 would be strong enough to save the Union; perhaps 
 it was because he was constantly outvoted by his 
 colleagues from New York and was embarrassed 
 thereby. Whatever the reason may have been, we 
 are always surprised and disappointed that he did 
 not play a larger part in determining the form of 
 the Constitution. 
 
 But there was little hope of recognition from that 
 assembly of such views as Hamilton proclaimed. It 
 may have been quite true, as he said, that " the 
 British government was the best in the world," but 
 it would have been folly to suppose that the Con- 
 vention would accept or act in accordance with such 
 doctrine. Nor are we led to believe that Hamilton 
 was so devoid of political sagacity as to suppose it 
 would. Much more probable does it seem that he 
 wanted to go on record as the advocate of a strongly 
 centralized government, if thereby he might convince 
 any of the importance of strength as an element of 
 government. The Articles of Confederation were 
 cursed beyond all else by weakness ; he saw it clearly ; 
 he despaired of accomplishing what he desired ; what 
 better could he do than to set a high standard of 
 what he believed to be best? Too high a standard 
 to be realized, perhaps, but in the reaction, would 
 the members of the Convention go quite so far on 
 the road toward a loose confederacy? Might they 
 not be emboldened to give a fair measure of power 
 to the central government? Finding himself unable 
 to contribute to the deliberations, and knowing full 
 well that any action he might take would be re- 
 garded as purely personal, and in no sense as the 
 action of his State, Hamilton withdrew from the 
 
Alexander Hamilton 41 
 
 Convention, not to return again until near the close 
 of its sessions, in time to affix his signature to the 
 final document. 
 
 Though Hamilton found the " New Jersey " plan 
 " utterly untenable," and though " he saw great diffi- 
 culty in establishing a good national government on 
 the Virginia plan," yet when he perceived that the 
 Constitution was the best that could be had under 
 the circumstances, that it offered a chance of escape 
 from the anarchical condition into which the country, 
 had fallen, there was none so zealous as he in the 
 advocacy of its adoption. Associating with himself 
 Madison and, for a short period. Jay, he began the 
 publication of that now famous series of papers called 
 the Federalist. Here was set forth, in a manner since 
 unrivalled, the very essence of the new government 
 that was to be established.'^ With the clearest of 
 logic there was demonstrated the evils of the Con- 
 federation and the fashion in which these evils were 
 to be cured by the new federal arrangement; bril- 
 liant in style and persuasive in manner, these papers 
 went forth carrying conviction with them. To them 
 more than to any other one agency was due the 
 final adoption of the Constitution, for though writ- 
 ten for the people of New York State, their infiuence 
 was felt in all the States which had not yet 
 acted.^ To this day they remain an authoritative 
 exposition of our fundamental instrument of govern- 
 ment and a testimony to the insight and learning 
 
 1 Fiske, op. dt., p. 225, is led by his enthusiasm to describe it 
 as " the greatest treatise on government that has ever been 
 written." 
 
 2 There is a great divergence of opinion as to the actual in- 
 
 -K 
 
42 Story of the Constitution 
 
 of their authors. To Hamilton is due the credit of 
 originating the idea and of contributing by far the 
 larger number of the papers. 
 
 With the conclusion of the Federalist, Hamilton's 
 labors in behalf of the adoption of the Constitution 
 were by no means over. The Legislature of New 
 York was hostile to the Constitution and was under 
 the control of Governor Clinton. When Hamilton 
 began his contest with the majority, defeat seemed 
 inevitable ; that he won in th6 end and thereby saved 
 New Tork for the Union and mayhap the Union it- 
 self, may well be accounted one of his greatest 
 triumphs. It was indomitable will, the tact of a 
 diplomat, the skill of a parliamentary tactician, the 
 eloquence of a persuasive personality, and the just- 
 ness of the cause that triumphed over a bigoted and 
 selfish opposition.^ It was no more than fitting 
 that in the celebration of the victory in New 
 York City, the ship of state should be inscribed 
 Hamilton. 
 
 It would be impossible to bring within our view 
 all of Hamilton's conclusions regarding the nature of 
 the new Union. It may be worth while, however, to 
 consider such as have been and still are the battle- 
 ground of party strife. 
 
 In the first place, Hamilton accepted as indisputable 
 
 fluence exerted by the Federalist. In support of the view pre- 
 sented in the text, the following may be noted: Curtis, Con- 
 stitutional History, i., 280 ; Fiske, Critical Period, p. 342 ; Oliver, 
 op. (At., p. 168; Morse, op. eit., i., 266; Lodge, op. cit., p. 67. For 
 ■the contrary view, J. B. McMaster, History, i., 484, and A. C. 
 McLaughlin, The Confederation and the Constitution, p. 308. 
 1 Cf. Oliver, op. cit, pp. 176-179. 
 
Alexander Hamilton 43 
 
 the view that the Constitution was not an amended 
 form of the Articles of Confederation, but that it 
 was a " confederated republic," " an assemblage of 
 societies, or an association of two or more states into 
 one state." It was more than a confederacy, inas- 
 much as the power of the central government could 
 be exerted upon individuals and not merely upon 
 States ; it was less than a consolidated State, because 
 the existence of the several States had been most 
 carefully preserved.^ The Convention had aimed only 
 at a partial consolidation of the States in a union 
 in which they retained all rights previously enjoyed 
 and which had not been expressly delegated to the 
 Federal Government. The delegation of powers was 
 not only to the Federal Government but to the State 
 governments as well. This conception of a delega- 
 tion of power rests upon the view which sees in the 
 people the sovereign, the possessor of supreme powers ; 
 a part of these powers the people had delegated to 
 the State governments, a part they would delegate 
 to the Federal Government by the adoption of the 
 Constitution, and still another part they would re- 
 tain.2 It is -the old idea of Locke and the people's 
 power of revolution viewed from a different angle 
 and wearing a slightly altered dress. Hamilton, 
 however, regarded the Federal Government as the 
 judge of its own powers ; if it overstepped its bounds, 
 the people were to judge of the fact and to institute 
 the correction. The Constitution to Hamilton was 
 not a treaty, but " the supreme law of the land. 
 
 vsls\ 
 , a! 
 
 '^ Cf. The Federalist, Ford's edition, Nos. 9, 15, and 16, and 
 Works, ii., 9. 
 ^lUd., No. 23. 
 
44 Story of the Constitution 
 
 government, which is only another word for political 
 
 POWER AND SUPEEMACY." ^ 
 
 The States, moreover, were in no danger; in pro- 
 portion as they stand nearer to the people will they 
 demand a greater share of their affection ; " we love 
 our families more than our neighbors; we love our 
 neighbors more than our countrymen in general. On 
 these principles, the attachment of the individual 
 will be first and forever secured by the State govern- 
 ments." 2 The very existence of the Federal Union 
 rests upon the States, and the balance between the 
 national and State governments is of the utmost im- 
 portance. " It forms a double security to the people. 
 If one encroaches on their rights they will find a 
 powerful protection in the other." ^ On the other 
 hand, speaking of those who stood for a complete 
 freedom of the States within the Union, we find 
 Hamilton using these significant words : " They 
 seem to aim at things repugnant and irreconcilable; 
 at an augmentation of federal authority, without a 
 diminution of state authority; at a sovereignty in 
 the Union and complete independence in the mem- 
 bers. They still in fine seem to cherish with blind 
 devotion the political monster of an imperium in 
 imperio." * 
 
 On the question of the separation of the powers of 
 government, that doctrine of Montesquieu's which 
 was itself based upon a misconception, we do not 
 find the doctrinaire opinion which has so often made 
 
 1 Federalist, No. 33. 
 
 2 Works, ii., 70. Cf. Federalist, Nos. 17 and 30. 
 ^Ibid., ii., 28. 
 
 * Federalist, No. 15. 
 
Alexander Hamilton 45 
 
 itself felt to the detriment of the country in the 
 relations of the various branches of government. A 
 separation of legislative, executive, and judicial func- 
 tions was regarded, to be sure, as a cardinal prin- 
 ciple of political philosophy, at least in those 
 governments in which the citizens enjoy the bless- 
 ings of liberty and freedom. In Hamilton's eyes the 
 separation could not and must not be complete. The 
 Judiciary, having " neither force nor will but merely 
 judgment," should be independent; the Legislative 
 and Executive were mutually dependent and should 
 act merely as checks upon each other, not as 
 blocks to bring the action of government to a 
 standstill.^ 
 
 That Hamilton had fathomed the true nature of 
 the new government is clearly manifested in his reply 
 to the objection made to the Constitution on the 
 ground that it did not contain a Bill of Eights. 
 Such a Bill of Eights, he thought, would furnish no 
 security to liberty. In origin these bills were stipu- 
 lations between kings and their subjects by which 
 the latter secured the abridgment of the royal pre- 
 rogative; consequently there was no place for them 
 in a constitution founded upon the power of the 
 people. " We, the people of the United States . . . 
 do ordain and establish this Constitution for the 
 United States of America." Here, he said, was " a 
 better recognition of popular rights than volumes of 
 those aphorisms which make the principal figure in 
 several of our State bills of rights." ^ 
 
 ^Federalist, No. 78, and Ford, op. dt., p. 81. 
 ^Federalist, No. 84. 
 
46 Story of the Constitution 
 
 Important as was Hamilton's part in securing the 
 adoption of the Constitution and in giving us a theo- 
 retical exposition of its nature, it was insignificant 
 when compared with the tremendous influence he 
 exerted upon the living form this lifeless docu- 
 ment should take.^ The pressing need of the govern- 
 ment under the Articles of Confederation had been 
 money. The failure of the States to furnish the 
 requisitions made upon them had resulted in the 
 bankruptcy of the general government, with a con- 
 sequent loss of respect at home and abroad. The 
 ! immediate cause of the Constitutional Convention lay 
 in the financial necessities of the government as 
 illustrated by its lack of power to impose taxes and 
 to regulate commerce. So it became the first and 
 most important duty of the new Federal Govern- 
 ment to establish itself upon a firm financial footing. 
 The one man suited for the task was Hamilton and 
 to him Washington turned. Appointed Secretary of 
 the Treasury in 1789, he carried through the first 
 Congress that great series of acts providing for the 
 assumption of the foreign and domestic obligations, 
 both of the Confederation and of the States ; for levy- 
 ing an excise and for the establishing of a National 
 Bank. In the words of Webster, he " smote the rock 
 of the national resources, and abundant streams of 
 revenue gushed forth; he touched the dead corpse 
 of Public Credit, and it sprang upon its feet." 
 
 The failure of the Confederation had been due to 
 financial weakness ; the safety of the new government 
 lay in financial strength ; Hamilton felt that he must 
 
 ^Cf. Oliver, op. cit., pp. 183-248. 
 
Alexander Hamilton 47 
 
 bind men to it by hoops stronger than steel; that 
 he must replace affection by interest and offset lack 
 of patriotism by financial obligation. Money was to 
 him " the vital principle of the body politic." ^ 
 Hence it was that he took the first step toward en- 
 listing the men of wealth in the cause of the new 
 government. With the assumption of the domestic 
 debt by the Federal Government, a host of indi- 
 viduals were made to feel that its success was their 
 prosperity, its failure their ruin, and by the very 
 fact of the assumption of the State debts the Federal 
 Government took its stand ahead of the States as 
 something bigger and better than they. The men of 
 the States looked beyond them, in this one respect at 
 least, to a higher power. The assumption of the State 
 and national debts was, however, but one step in 
 the process of allying wealth and central govern- 
 mental authority. Preceding it was the passage of 
 an act of lasting consequence providing for the regu- 
 lation of commerce by the imposition of important 
 duties, a tariff which was to furnish both revenue 
 and protection. Following the assumption bills 
 came an act levying an excise tax and providing for 
 an internal-revenue service. As the crowning stroke 
 in Hamilton's policy of centralization, an act was 
 passed providing for the establishment of a National 
 Bank. 
 Here for the first time there arose the question of 
 
 1 Federalist, No. 30. As early as 1780 in a letter to Morris 
 in which he advocated the establishment of a National Bank, 
 Hamilton had realized the value of uniting " the interest and 
 credit of rich individuals with those of the State." — Works, iii., 
 332. 
 
48 Story of the Constitution 
 
 the extent of the powers of Congress. The financial 
 needs of the government were so urgent that little 
 thought had been given to the title of the act to 
 levy import duties; it was no time for questioning 
 the purposes of the bill beyond that of raising reve- 
 nue and so the power of Congress to protect infant 
 industries passed unchallenged. The funding and 
 assumption bills might well be opposed on the 
 grounds of expediency, or the resulting position of 
 inferiority of the States, but there could be no serious 
 claim presented that Congress had no right to do 
 these things. Far otherwise was it, however, with 
 the proposal to establish a National Bank. It was 
 vigorously objected that nowhere does the Constitu- 
 tion give Congress the right to charter such a bank; 
 but on the other hand the tenth amendment had been 
 added especially providing that " the powers not 
 delegated to the United States by the Constitution, 
 nor prohibited by it to the States, are reserved to 
 the States respectively or to the people." To this 
 objection Hamilton made ready answer with another 
 provision of the Constitution, the so-called " Elastic 
 Clause," the fertile source of the " implied powers," 
 which provides that Congress shall have the right 
 " to make all laws which shall be necessary and 
 proper for carrying into execution the foregoing 
 powers, and all other powers vested by this Con- 
 stitution in the Government of the United States." ^ 
 Hamilton, in an opinion which Judge Story pro- 
 nounced " one of the most masterly disquisitions 
 that ever proceeded from the mind of man," 
 
 lArt. I., Sec. 8, clause 18. 
 
Alexander Hamilton 49 
 
 claimed that the establishment of a National Bank 
 was a proper measure and one needed to set the 
 national government on its feet. His 'opponents, led 
 by Jefferson, contended that the bank was not neces- 
 sary and if not necessary, it could not be established 
 from motives of mere convenience.^ 
 
 The possibilities of the strength of the Federal 
 Government from these measures of Hamilton rapidly 
 began to excite alarm, but the moneyed and manufac- 
 turing classes were already allied with the Federal 
 Government and the bank was established. With 
 the establishment of the National Bank, Hamilton's 
 constructive efforts in shaping the future of the Con- 
 stitution were finished; he had left the impress of 
 his genius upon the instrument of government, and 
 had marked out the path that national development 
 has ever since pursued. He sought to establish a 
 government in which wealth should stand at the 
 helm, guiding and steadying the ship of state. He 
 distrusted the turbulence of democracy and believed 
 in the rich and the well-born ; he feared the multitude 
 and trusted the chosen few. For the Republic he 
 sought strength in wealth, and desired the national 
 government to reach out, under the doctrine of loose 
 construction, for all those powers that might be 
 proper for the existence of a nation. 
 
 Upon the issue presented by these questions, the 
 natural divergence between Hamilton and Jefferson 
 widened until they stood at the head of opposing 
 
 1 Works, i., 445 ff. Opinion as to the Constitutionality of the 
 Bank of the United States. Jefferson's opinion may be found 
 in his Works, Memorial edition, iii., 145-153. For extracts 
 from both opinions see the Appendix. 
 
50 Story of the Constitution 
 
 factions, the beginnings of the two great parties 
 which, despite changes of name, have in essence re- 
 mained the same. To-day, as in the presidency of 
 Washington, the people are arrayed under the ban- 
 ners of "loose" and "strict" construction, though 
 our speech may be in slightly altered terms. The 
 rivalry and jealousy between Hamilton and Jefferson 
 became so keen that in 1794 Jefferson retired from 
 the Cabinet; in the next year Hamilton resigned to 
 give attention to his personal affairs. 
 
 The remaining years of Hamilton's life were not 
 purposeless, though they added nothing to his already 
 great acTiievements ; they were spent in the effort 
 to continue the government in the course upon which 
 he had started it, and his must have been a strange 
 nature that would not have been saddened by seeing 
 the country slowly but surely drifting away from his 
 ideal and beyond his control. The Virginia Resolu- 
 tions of 1798, with their claim of the right of the 
 States to judge of the constitutionality of laws, and 
 the Kentucky Resolutions of the next year, with that 
 insidious doctrine of the right of nullification which 
 had as its logical successor the yet more dan- 
 gerous right of secession, filled his mind with anxious 
 forebodings. He loved with a passionate ardor the 
 nation he had done so much to create. " If this 
 Union were to be broken," he cried, " it would break 
 my heart." 
 
 In the election of Jefferson, Hamilton witnessed 
 the triumph of the most implacable foe to all his 
 ideas — a triumph to which his own sacrifice of self 
 to patriotism contributed — and the dark shadow of 
 failure fell for the first time across his path, but the 
 
Alexander Hamilton 51 
 
 bitterness of his last years must have been tempered 
 by that great national act to which he saw his oppo- 
 nent driven — the purchase of Louisiana. We must 
 ever sincerely lament his tragic death on the fields 
 of Weehawken, which robbed our country of its 
 greatest intellect while still in its prime; for his 
 own sake we can but wish he might have been 
 spared another decade to witness the survival and 
 ultimate triumph of the principles he cherished so 
 passionately. 
 
Ill 
 
 James Wilson. Growth through 
 Speculative Forecast. 
 
 S3 
 
JAMES WILSON 
 
 1742. Sept, 14. 
 1757. 
 
 1765. 
 
 1765-66, 
 
 1768. 
 
 1769. 
 
 1778, 
 
 1775-78, 
 
 1782-83, 
 
 1785-87, 
 
 1787. 
 
 1788. 
 
 1789-90. 
 
 1789-98. 
 
 1790-92. 
 
 ;l 
 
 Born near St. Andrews, Scotland. 
 
 At Universities of Glasgow, Edinburgh, and St. 
 
 Andrews. 
 Came to America. 
 In New York. 
 
 Admitted to Philadelphia bar. 
 Moved to Carlisle. 
 Settled in Philadelphia. 
 
 Continental Congress, 
 of Independence. 
 
 Signer of Declaration 
 
 Member of Constitutional Convention. 
 
 Member of Pennsylvania Convention. 
 
 Member of State Constitutional Convention. 
 
 Associate Justice of U. S. Supreme Court. 
 
 Professor of Law in the College of Philadel- 
 phia, which in 1792 became the University 
 of Pennsylvania. 
 1798. Aug. 28. Died at Edenton, N. C. 
 
 54 
 
Ill 
 
 James Wilson. Growth through Speculative 
 Forecast. 
 
 FOE depth of legal learning and soundness of 
 judgment in political affairs, James Wilson of 
 Pennsylvania was unsurpassed by any member of 
 the Constitutional Convention. Hamilton may have 
 been more brilliant or Madison a deeper student of 
 the art of government, but neither could rival Wil- 
 son in insight and originality. With all the logical 
 precision of his Scotch intellect, he surveyed the con- 
 ditions around him, analyzed, classified, and arranged 
 the facts of political life in their proper categories, 
 and deduced from them his conclusions with respect 
 to the kind of government needed. There were not 
 lacking others who did the same thing, but they 
 failed to equal Wilson in penetration and the 
 ability to follow principles to their logical conclu- 
 sions. No member of the Convention had a firmer 
 grasp than did Wilson of the one great question to 
 be settled — that of union with independence. 
 
 The creation of a new state, national in the ex- 
 tent of its jurisdiction and supreme in matters of 
 common interest, with the preservation of State free- 
 dom in purely local matters, was a novelty in the 
 
 55 
 
S6 Story of the Constitution 
 
 realm of political speculation. Confederations there 
 had been a plenty; we ourselves had made trial of 
 one and because of its failure the Convention had 
 been called. Many desired to adhere to the old form 
 of government, deeming it sufficient if its powers 
 should be enlarged; others desired a consolidation 
 of the States into one wherein the individual States 
 should be only administrative districts. Between 
 these two views stands the one finally adopted by the 
 Convention. The idea of a Federal State, embracing 
 all the people of the component States but not de- 
 pendent upon the States themselves, within which 
 the individual States continue an independent ex- 
 istence, was both new and complex. Other men 
 perceived certain phases and aspects of this new con- 
 ception, but none possessed so comprehensive a view, 
 as did Wilson, of this Federal Eepublic, which was 
 to be a state above States, a state embracing States, 
 and yet not composed of those States so much as 
 of the people within them who were regarded as 
 forming a single nation. 
 
 As we look back upon the men of the Convention, 
 Wilson seems to have had the clearest conception 
 of the future course of government in the United 
 States; his ideas were those toward which we have 
 ever since been working.^ Like Hamilton, he not 
 only took part in the work of the Convention, but 
 also in the far more important work of infusing into 
 the dead body of the written document the living 
 
 1 Cf. B. A. Konkle, James Wilson and the Constitution; and 
 L. H. Alexander, James Wilson, Patriot, and The Wilson Doc- 
 trine, p. 14, for a quotation from President Roosevelt's speech 
 at Philadelphia, October 4, 1906. 
 
James Wilson 57 
 
 power of practice. Hamilton's great service lay in 
 organizing the administrative department of the gov- 
 ernment along the lines of its financial life. Wilson 
 played a less obtrusive but a scarcely less import- 
 ant part in setting in motion the judicial functions 
 outlined in the Constitution and more fully deter- 
 mined by the first Congress, in establishing the 
 Supreme Court upon the lofty plane it has since 
 preserved and in making it the national organ of a 
 truly national state.^ 
 
 Until within recent years Wilson and his work 
 were known and appreciated only by the few who 
 delved into the dusty records of his time; even now 
 there are many who do not associate his name with 
 any great idea, and the number who rank him as 
 he so justly deserves, along with the great men of 
 the revolutionary era, is extremely small ; but thanks 
 to the many students of this epoch of American his- 
 tory, the justification of James Wilson as one of the 
 great thinkers of our country advances steadily. It 
 is not altogether clear, when we review his long and 
 important services, why he should have been lost 
 sight of so completely after his death. Doubtless 
 the heat of party passions had somewhat to do with 
 belittling his services and obscuring his name. Men 
 who in 1788 had burned in efftgy " James Wilson, 
 the Caledonian," for his " aristocratic tendencies," 
 for his love of a strong government and his advocacy 
 of the Federal Constitution within the State of 
 Pennsylvania, would not soon lay aside their hatred; 
 moreover, with the triumph of the Democratic- 
 
 1 Cf. H. L. Carson, The Supreme Court of the United States. 
 
$8 Story of the Constitution 
 
 Republicans within two years after his death, his 
 views could have found acceptance with only a small 
 minority of the people. Doubtless, too, the fact that 
 his large fortune was swept away just before his 
 death cast a shadow upon the fame of his services to 
 his country as in the similar case of his friend Robert 
 Morris. Wilson was cordially disliked by that very 
 ' considerable element of Pennsylvanians who opposed 
 { the adoption of the Constitution on the ground that 
 1 it deprived the State of its sovereign rights and the 
 I people of their guarantees of liberty and safety. 
 These men ridiculed the Federalists for their hos- 
 tility to democracy and their distrust of the people, 
 but in reality they preferred to be first in Pennsyl- 
 vania than second in the Union. They dreaded the 
 strong hand of law and order and saw in its estab- 
 lishment a lessening of the license they called 
 liberty. 
 
 James Wilson was born near St. Andrews, Scot- 
 land, in 1742.^ After several years at the Univer- 
 sities of Glasgow, Edinburgh, and St. Andrews, he 
 came to America in 1765 and settled in Philadelphia ; 
 for two years he studied law under John Dickinson, 
 and in 1768 at the age of twenty-six was admitted 
 to the bar. He began the practice of law at Carlisle, 
 but the growth of his interests led him in a few 
 years to settle in Philadelphia. The natural inclina- 
 tion of his mind was congenial to the character of 
 political topics then under discussion and it is not 
 
 ' For the facts of Wilson's life see Konkle, op. cit., and Bi- 
 ography of the Signers of the Declaration of Independence, ed. 
 by Sanderson, iii., pp. 259-301. Where there is a divergence of 
 view respecting dates I have followed Konkle. 
 
James Wilson 59 
 
 surprising to find him entering at once into the 
 public discussion being carried on. In 1775 he was 
 chosen a member of the Second Continental Congress 
 and in the following year was one of that immortal 
 number of signers of the Declaration of Independence. 
 From this time forth he was engaged almost con- 
 stantly in the public service. From 1775 to 1777, 
 from 1782 to 1783, and from 1785 to 1787, he was 
 a member of the Continental Congress. His serv- 
 ices in that body are coincident with the three great 
 periods in its history : the first is that of the Declara- 
 tion of Independence and the proposal of the Articles 
 of Confederation; the second is that of the final 
 adoption of the Articles after the wise and statesman- 
 like efforts of Maryland had resulted in securing 
 the cession by the various States of their Western 
 lands and the creation of a lasting tie and common 
 interests; the third and final period is that of the 
 summoning of the Constitutional Convention and the 
 acceptance of its work. 
 
 In the Constitutional Convention Wilson labored 
 indefatigably to fashion the instrument in symmetry 
 and power, and in the Pennsylvania State Convention 
 he strove no less zealously to secure its adoption. 
 In 1789 Washington appointed him an Associate 
 Justice of the Supreme Court, a position which he 
 continued to fill with distinction till his early 
 death while on circuit at Edenton, North Carolina, 
 in 1798. 
 
 The field of Wilson's activity is left incomplete 
 without some notice of the fact that from 1790 to 
 1792 he was professor of law in the College of 
 Philadelphia, now the University of Pennsylvania. 
 
6o Story of the Constitution 
 
 In his law lectures we find a systematic presentation 
 of his views on the nature of the Federal Govern- 
 ment, for they were concerned far more with the 
 philosophy of law, the nature of the state, and the 
 character of the Federal Government than with any 
 particular branch of private law.^ That Wilson was 
 a thinker of originality is evident from his boldness 
 in rejecting the time-honored definition of law as con- 
 secrated by the name of Blackstone. He rejects the 
 (conception of law as a rule of action laid down by 
 \ a superior, and regards it as receiving its binding 
 force from " the consent of those whose obedience 
 the law requires. " ^ 
 
 In the Convention, " none with the exception of 
 Gouverneur Morris," says McMaster, " was so often 
 on his feet during the debates or spoke more to the 
 purpose. " ^ From the record of these speeches we 
 can gather a fairly accurate conception of Wilson's 
 services in the making of the Constitution and of 
 his ideas respecting the kind of government he de- 
 sired to see established. It would be absurd to 
 imagine that all the members of the Convention had 
 an appreciation of the great changes that were be- 
 ing made, or that they would have approved if they 
 had known, nor is it to be supposed that any of 
 them foresaw the full force of what they did. They 
 were neither seers nor prophets, but practical men 
 for the most part, intent on making a new appli- 
 cation of their political wisdom and experience to 
 the new conditions that had arisen. They were not 
 
 ' Works, ed. by J. DeW. Andrews, 2 vols., Chicago, 1896. 
 ^Ibid., i., 88. 
 • ** History of the People of the United States, i., 421. 
 
James Wilson 6i 
 
 doctrinaires with a theory of government to put 
 into execution, but earnest seekers for some remedy 
 for the anarchical condition into which the po- 
 litical relations of the States had fallen, for some 
 sort of governmental arrangement that would re- 
 place the anarchy that was imminent. If here 
 and there among the members there was to be 
 found a man whose gaze penetrated even a short 
 way into the future, who saw with some clearness 
 the form and nature of the new Union, he is a 
 distinct exception. That there were such men 
 cannot be denied, and foremost among them stands 
 Wilson. 
 
 First of all it should be noted that Wilson, far 
 from being an " aristocrat " as his enemies charged, 
 was a firm believer in democracy. " He was for 
 raising the Federal pyramid to a considerable alti- 
 tude," he declared, yet " for that reason wished to 
 give it as broad a basis as possible. No government 
 could long subsist without the confidence of the 
 people." ^ As an indication of his trust in the peo- 
 ple there may be cited his zealous advocacy of the 
 election by the people of the Executive^ and the 
 members of both branches of the legislative body.^ 
 " He wished for vigor in the government, but he 
 wished that vigorous authority to flow immediately 
 from the legitimate source of all authority," and 
 again, " the legislature ought to be the most exact 
 transcript of the whole society. Representation is 
 made necessary only because it is impossible for the 
 
 1 Documentary History of the Constitution, iii., 28. 
 
 ^Ibid., iii., 39-49. 
 
 3 Ibid., iii., 31 and 40. 
 
62 Story of the Constitution 
 
 people to act collectively." ^ Speaking again on the 
 subject of representation, Madison reports him as 
 saying, "if we are to establish a national govern- 
 ment, that government ought to flow from the peo- 
 ple at large." ^ Finally there could be no clearer 
 confession of his allegiance to the principle of de- 
 mocracy than we find in the course of the discus- 
 sion of the equal representation of the States in the 
 Senate — a proposal which Wilson vigorously opposed 
 —when he declared that " the majority of the people 
 wherever found ought in all questions /to govern the 
 minority." * " He was a believer in democracy and 
 in nationalism — the first man," it has been said, " in 
 all our history who united the two opinions." 
 
 The debates on the rule of suffrage in the national 
 legislature were numerous and protracted, for in this 
 question was contained the struggle between the 
 large and the small States. It was in the course of the 
 discussion of this part of the Randolph or " Virginia 
 plan," on June 9th, in the Committee of the Whole, 
 that Brearly of New Jersey proposed " that a map 
 of the United States be spread out, that all the ex- 
 isting boundaries be erased, and that a new partition 
 of the whole be made into thirteen equal parts." * 
 Paterson of New Jersey followed in a lengthy speech 
 on the powers of the Convention under the resolution 
 of Congress ; on the idea of a national as distinguished 
 from a federal government, or a confederacy, which pre- 
 supposed sovereignty in its members. Wilson replied : 
 
 1 Documentary History of the Constitution, iii., 70. 
 ^Ibid., iii., 81. 
 ^Ibid., iii., 330. 
 *Ibid., iii., 96. 
 
James Wilson 63 
 
 We have been told that each State being sovereign, 
 all are equal. So each man is naturally a sovereign over 
 himself, and all men are therefore naturally equal. Can 
 he retain this equality when he becomes a member of 
 civil government? He can not. As little can a sov- 
 ereign State, when it becomes a member of a federal 
 government. If New Jersey will not part with her 
 sovereignty it is vain to talk of government. A new 
 partition of the States is desirable, but evidently and 
 totally impracticable.'^ 
 
 The Committee of the Whole reported Eandolph's 
 plan as amended on June 13th, and the next day 
 Paterson asked time to present a " purely federal " 
 plan and " contradistinguished from the reported 
 plan." On the 15th Paterson submitted the so-called 
 " New Jersey plan," and Randolph's plan was re- 
 committed that there might be a full and free dis- 
 cussion of both. On the following day the two plans 
 were discussed at length by Lansing of New York 
 and by Paterson himself, both of whom stated very 
 clearly the difference in the character of the plans 
 submitted; both advocated the New Jersey plan, 
 which did not contemplate any change in the nature 
 of the new Union from that under the Articles of 
 Confederation. Wilson likewise contrasted the two 
 plans, point by point, but always in favor of the 
 Virginia plan, which contemplated the establishment 
 of a national government, consisting of a supreme 
 Legislative, Executive, and Judiciary.^ On June 
 19th the Committee of the Whole rejected Paterson's 
 plan and reported Randolph's plan unchanged, upon 
 
 1 Documentary History of the Constitution, iii., 100. 
 2/6id., iii., 132 ff. 
 
64 Story of the Constitution 
 
 which " Mr. Wilson observed that by a national gov- 
 ernment he did not mean one that would swallow 
 up the State governments, as seemed to be wished 
 by some gentlemen. He was tenacious of the idea 
 of preserving the latter. He thought, contrary to 
 the opinion of (Colonel Hamilton) that they might 
 not only subsist but subsist on friendly terms with the 
 former. They were absolutely necessary for certain 
 purposes which the former could not reach." ^ The 
 danger was rather that the national government 
 would be devoured by the State governments, though 
 " he saw no incompatibility between the national 
 and State governments provided the latter were re- 
 strained to certain local purposes; nor any proba- 
 bility of their being devoured by the former." ^ 
 
 But it was the clearness with which Wilson per- 
 ceived the true nature of the Federal State to which 
 I wish to call special attention. His views on this 
 subject are best seen in his discussion of the ques- 
 tion whether the members of the second branch of 
 the legislative body should be chosen by the Legis- 
 latures of the States. 
 
 He was opposed to an election by the State legislatures. 
 In explaining his reasons it was necessary to observe the 
 twofold relation in which the people would stand: 1, as 
 citizens of the general government; 2, as citizens of their 
 particular State. The general government was meant for 
 them in the first capacity; the State governments in the 
 second. Both governments were derived from the peo- 
 ple — both meant for the people — both therefore ought to 
 
 1 Documentary History of the Constitution, iii., 162-163. 
 2/6id., iii., 76. 
 
James Wilson 65 
 
 be regulated on the same principles. . . . With respect 
 to the province and objects of the general government 
 they [the State governments] should be considered as 
 having no existence. The election of the second branch 
 by the Legislatures, will introduce and cherish local in- 
 terests and local prejudices. The general government is 
 not an assemblage of States, but of individuals for cer- 
 tain political purposes — it is not meant for the States, 
 but for the individuals composing them; the individuals, 
 therefore, not the States, ought to be represented in it.^ 
 
 Again in the debate on this same question he asks, 
 " Can we forget for whom we are forming a govern- 
 ment? Is it for men, or for the imaginary beings 
 called States?"^ 
 
 As in this question of representation, so through^ 
 out the course of the debates Wilson stood for the 
 creation of a strong national power to which the 
 States should be subordinate, though independent 
 within their own spheres. That this is the result 
 Wilson believed had been accomplished by the Con- 
 stitution is conclusively shown in his lectures on law 
 at the College of Philadelphia in the winter of 
 1791-92 and in his decisions after his appointment 
 to the Supreme Court of the United States. 
 
 Wilson was one of the earliest professors of Ameri- 
 can constitutional law, and his exposition of the 
 nature of the Federal Union was one of the first 
 attempts to set forth a systematic analysis of the 
 powers and relationships of the States and the na- 
 tion. His lectures constitute the first authoritative 
 
 ^Documentary History of the Constitution, iii., 208-209. 
 2 Ibid., iii., 250. 
 
66 Story of the Constitution 
 
 discussion of the Constitution from any other stand- 
 point than that of political advocacy or opposition., 
 The Federalist, to be sure, had preceded Wilson's j 
 lectures by a couple of years, but magnificent as are 
 those essays, fundamental as they are to our con- 
 stitutional history, they must always suffer from 
 the fact that they were written with a persuasive 
 purpose; their object was to secure the adoption of 
 the Constitution by the people of New York. Their 
 purpose marred their symmetry and completeness. 
 Wilson, on the other hand, wrote after the Consti- 
 tution had been adopted and put into operation for 
 more than a year. There was no need for advocacy 
 or apology but only for a calm and unprejudiced ex- 
 position; and one who reads these lectures must of 
 necessity be impressed with a sense of the importance 
 attaching to their delivery in the mind both of the 
 lecturer and of his audience. 
 
 Philadelphia was at this time the chief city of the 
 country in wealth and culture, and the seat of the 
 new national government had just been transferred 
 to it from New York. The brilliant society which 
 centred in the city has been styled " The American 
 Court." The opening lecture was of sufficient in- 
 terest and importance to attract the presence of 
 Washington and a distinguished company of ladies 
 and gentlemen from this " court." 
 
 Wilson was a political philosopher as well as a 
 jurist, and in his thought concerning the nature and 
 origin of civil society he had arrived at conclusions 
 differing radically from the accepted views of the 
 times. Society, to be sure, he regarded as based upon 
 compact or the consent of the individuals, but so- 
 
James Wilson 67 
 
 ciety is not, therefore, artificial ^ ; it is natural and 
 necessary; the state of nature is not a state of war 
 of all against all since in it men are ruled by good 
 and not by evil desires, yet without society man can 
 not accomplish for himself or for others the things 
 desired. Wilson is, therefore, in accord with the 
 Aristotelian conception of man as a social and politi- 
 cal animal. The social contract unites men into a body 
 politic or corporation ^ which he regarded as a moral 
 person.^ In the state of nature all men are free 
 and equal in rights and obligations * and this free- 
 dom and equality are not lost in civil society. 
 Natural liberty is not abridged but increased by the 
 establishment of society, for a man " will gain more 
 by the limitation of other men's freedom, than he can 
 lose by the diminution of his own." ^ 
 
 The powers of individuals, enjoyed before the 
 contract, remain as an aggregate in society.® The 
 supreme or sovereign power of the society, there- 
 fore, resides in the citizens at large. In this moral 
 person, this corporation, thus created by contract, 
 the voice of the majority must pass for the voice 
 of the whole, for the minority is bound by its con- 
 sent originally given to the establishment of society. ''^ 
 There is thus laid the broad foundation for that de- 
 mocracy we have already noted as an integral part 
 of his political views. 
 
 1 Cf. Works, i., 253 if. 
 
 2 Ibid., i., 271-272. 
 
 3 Ibid., i., 304-305. 
 * Ibid., l, 275. 
 
 = Ibid., ii., 300. 
 oibid., i., 169. 
 nbid., i., 227. 
 
68 Story of the Constitution 
 
 Wilson carefully distinguished between society or 
 the state, and government; society preceded govern- 
 ment which is merely the agent of society for the 
 performance of certain functions which society is 
 unable to perform for itself.^ Now this moral per- 
 son, which is society or the state, may constitute 
 its government in any fashion it chooses, and with 
 us it has chosen a written constitution as the in- 
 strumentality ; this constitution it may change when- 
 ever it chooses.^ 
 
 Furthermore in all states there must be a power 
 from which there is no appeal, a power absolute, su- 
 preme, and uncontrollable. Where is this power 
 lodged? Certainly not in constitutions, for we have 
 just seen that they may be changed at will by the 
 people. This supreme power, sovereignty, resides in 
 the people, in the citizens at large, and is paramount 
 to all constitutions. Moreover it is inalienable in 
 its nature and indefinite in extent, being the powers 
 of the individuals which, after the contract, remain 
 as an aggregate in society, and " all the other 
 powers and rights, which result from the social 
 union." 
 
 " All these powers and rights, indeed, cannot, in 
 a numerous and extended society, be exercised per- 
 sonally; but they may be exercised by representa- 
 tion." The delegation of sovereign powers, however, 
 is not alienation and carries with it always the 
 power and right of resumption. There can, more- 
 over, be no subordinate sovereignty; the people have 
 not parted with it; they have only dispensed such 
 
 1 Cf. Works, i., 343. 
 
 2 Ihid., i., 14-15 and 375. 
 
James Wilson 69 
 
 portions of power as were conceived necessary for 
 the public welfare.^ 
 
 The application that Wilson made of these prin- 
 ciples to the Federal Union leaves little to be desired 
 in completing his conception of its nature. The 
 Federal Union he regarded as a Federal Republic, 
 the vital principle of which he sees set forth in 
 Montesquieu's definition as a form of government 
 " by which several states consent to become citizens 
 of a larger state, which they wish to form. It is 
 a society formed by other societies, which make a 
 new one." ^ 
 
 This Federal Republic is not a consolidated gov- 
 ernment if thereby the destruction of the States is 
 meant — nor a confederacy, a mere alliance of sov- 
 ereign States, but a union of States so that the 
 individual State governments are retained and a 
 general government is established. " Its own exist- 
 ence, as a government of this description, depends 
 on theirs." * " The people of the United States must 
 be considered attentively in two very different views 
 — as forming one nation, great and united; and as 
 forming, at the same time, a number of separate 
 States, to that nation subordinate, but independent 
 as to their own interior government." * 
 
 That the whole people of the United States was 
 conceived of by Wilson as forming " one nation, 
 great and united," is nowhere more clearly shown 
 than in his discussion of the purely democratic prin- 
 
 1 Cf. Works, i., 169. 
 2/6id., i., 312. 
 3 Ihid., ii., 17. 
 *Ibid., ii., 7. 
 
70 Story of the Constitution 
 
 ciples at the basis of the Federal Constitution. The 
 source of all power he saw in the people, a source 
 totally unknown under the Articles of Confederation. 
 The preamble to the Constitution, " We, the people 
 of the United States, do ordain and establish this 
 Constitution," was to Wilson a practical declaration 
 of that principle; we can easily imagine we are listen- 
 ing to Webster when he declares that this preamble 
 was not for show but meant what it said; that the 
 Constitution is not a compact but an ordinance and 
 establishment of the people. " He could not answer 
 for what every member thought, but believed it could 
 not be said they believed they were making a com- 
 pact; he could discover no trace of compact in the 
 system. Compact requires more parties than one. 
 The Constitution was not founded upon compact but 
 upon the power of the people." 
 
 The general principle upon which a dividing line 
 was to be drawn between the State and the national 
 government was clear, though the practical appli- 
 cation presented difficulties. Whatever in its nature 
 and operation extended beyond the individual State 
 ought to be comprehended within the Federal juris- 
 diction. The people of the United States formed one 
 great community, the people of the different States 
 formed communities on a lesser scale. Hence Wil- 
 son believed that different proportions of legislative 
 powers should be given to the governments accord- 
 ing to the nature, number, and magnitude of their 
 objects. But the " truth is, that, in our govern- 
 ments, the supreme, absolute, and uncontrollable 
 power remains in the people." ^ 
 
 1 Works, i., 543. 
 
James Wilson 71 
 
 The further development of these ideas was carried 
 on by Wilson in his service upon the bench of the 
 Supreme Court during a period just short of ten 
 years in length. These were, moreover, the first 
 years of the Court's history — years of doubt and un- 
 certainty regarding the rights and powers of the 
 Court, of struggle to establish the Court on a plane of 
 equality with the Legislative and Executive branches 
 of the government, — but Wilson never faltered in his 
 application of his theories to the actual conditions 
 of government as they arose. Had he lived a few 
 years longer he would without doubt have ranged 
 himself on the side of Marshall in the famous case 
 of Marbury v. Madison, for in his discussion of the 
 relation of the various departments of the govern- 
 ment, that portion of his lectures dealing with the 
 power of the court to declare a law unconstitutional 
 is so strikingly like the decision that we are con- 
 strained to believe that Marshall had read and was 
 familiar with Wilson's argument.^ 
 
 Not alone in the power of the court to declare a 
 law unconstitutional does Wilson anticipate Mar- 
 shall. His " argument upon the Bank of North 
 America stands as a constitutional exposition second 
 to no constitutional argument or opinion delivered 
 before or since. Indeed, it not only embraces every 
 ground of argument which Marshall was called upon 
 to tread, but it assumed and defended precisely the 
 position which was necessarily taken in the legal- 
 tender decisions." ^ A single sentence from this re- 
 markable argument, made, to be sure, before the 
 
 1 Works, L, 416. 
 
 ^Ibid., i., XV. (Memoir), 
 
72 Story of the Constitution 
 
 adoption of the present Constitution, but even more 
 applicable to it than to the Articles of Confederation, 
 will reveal the clear insight that Wilson possessed 
 into the ultimate nature of the central government 
 and will astonish us by its twentieth-century tone. 
 It is easy to imagine that we are listening to a 
 passage from the judgments in the " insular cases," 
 in which the doctrine of inherent powers has found 
 a recent recognition and expression. 
 
 " Whenever," said Wilson, " an object occurs, to 
 the direction of which no particular State is com- 
 petent, the management of it must, of necessity, be- 
 long to the United States in Congress assembled." ^ 
 The Federal state, then, possesses inherent as well 
 as enumerated powers. Where the object involved is 
 beyond the power of the States, and where that power 
 is one ordinarily possessed by sovereign nations, 
 there the United States as a sovereign nation must 
 be supposed to enjoy this power. 
 
 Finally it fell to Wilson to participate in the de- 
 cision of the first great constitutional case to be 
 presented to the Supreme Court, the case of Chis- 
 holm V. Greorgia.^ A citizen of another State had 
 sued the State of Georgia in the Supreme Court and 
 the State had refused to recognize the jurisdiction 
 of the Court. Georgia protested vigorously against 
 the indignity of being haled into court like a com- 
 mon debtor. Though the Constitution declared that 
 the jurisdiction of the Supreme Court extended to 
 cases between a State and the citizens of another 
 State, it was contended that the intention of the 
 
 ^ Works, i., 558. 
 
 2 United States Supreme Court Reports, 2 Dallas, 419. 
 
James Wilson 73 
 
 framers of the Constitution was to give jurisdiction 
 in such cases only when the State voluntarily sub- 
 mitted to or invoked the jurisdiction. The States, 
 it was said, were sovereign and to compel a State to 
 submit to the jurisdiction of the Court was to rob 
 it of its sovereignty, to reduce it to a position of 
 inferiority to the Federal Government. 
 
 At the outset of his opinion Wilson formulated 
 the question presented to the Court in these terms: 
 " Do the people of the United States form a nation? " 
 He then considers the question from the three stand- 
 points of general jurisprudence, the law of na- 
 tions, and the Constitution of the United States, and 
 as a result of each he arrives at an affirmative an- 
 swer. Though the word sovereign may be unknown 
 to the Constitution, it was because the people, 
 serenely conscious of the fact that they were sov- 
 ereign, " avoided the ostentatious declaration." " The 
 people of the United States, among them Georgia, 
 ordained and established the present Constitution." 
 " The people of the United States intended to form 
 themselves into a nation for national purposes " — 
 " as to the purposes of the Union, therefore, Georgia 
 is not a sovereign State." As Judge Cooley has 
 said: 
 
 Justice Wilson, the ablest and most learned of the 
 associates, took the national view, and was supported 
 by two others. The Chief Justice was thus enabled to 
 declare the opinion of the court that, under the Consti- 
 tution of the United States, sovereignty belonged to the 
 people of the United States. ... It must logically fol- 
 low that a nation as a sovereignty is possessed of all 
 those powers of independent action and self-protection 
 
74 Story of the Constitution 
 
 which the successors of Jay subsequently demonstrated 
 were by implication conferred upon it.^ 
 
 Wilson, like Hamilton, was freed to a great extent 
 by the fact of his foreign birth from local prejudices 
 and State pride. America was the country of his 
 adoption and his patriotism embraced the whole of 
 it; not merely one of the thirteen States but all to- 
 gether claimed his allegiance. From the signing of 
 the Declaration of Independence to his untimely 
 death in 1798, Wilson was an ardent supporter of 
 the idea of a national state. In the Constitutional 
 Convention, in the Pennsylvania State Convention, in 
 his lectures, and upon the bench he labored for its 
 realization. The compromises of the Constitution 
 left that instrument such a compound of conflicting 
 views and opposing tendencies that its real nature 
 became apparent only as it was put into operation. 
 First, the Executive and Legislative branches, under 
 the guidance of Hamilton, rushed forward toward the 
 goal of nationalism but with too great haste; the in- 
 evitable reaction brought the triumph of the forces 
 of decentralization in these departments, while the 
 Judiciary, following the lead of Wilson, continued 
 to interpret the Constitution in the broadest national 
 sense. 
 
 The kind of a national union desired by Wilson 
 could not be achieved in the face of the opposition 
 of the individual States. He was more national than 
 his generation. The supremacy of the Union was 
 not finally settled till the Civil War. Since then the 
 doctrine of James Wilson has held the field; the 
 
 1 Constitutional History as Seen in American Law, pp. 48-49. 
 
James Wilson 75 
 
 sovereignty of the nation and the ultimate powers 
 of the Federal state are ideas that are daily being 
 used to extend the sphere of Federal activity, while 
 ex-President Koosevelt has proclaimed that he could 
 find no better guide for his own political actions 
 than the theories of James Wilson of Pennsylvania.^ 
 
 1 Cf, Alexander, op. dt., p. 1. 
 
IV 
 
 Thomas Jefferson. Growth through 
 Acquiescence 
 
 77 
 
THOMAS JEFFERSON 
 
 1743. April 13. Born at Shadwell, Albemarle Co., Va. 
 
 1767. Admitted to bar. 
 
 1769. Member of House of Burgesses. 
 
 1775. Delegate to Continental Congress at Phila- 
 
 delphia. 
 
 1776. June 11. Committee to draft Declaration of Inde- 
 
 pendence. 
 Resigned. 
 
 1779. Elected Governor. 
 
 1780. Re-elected. 
 
 1783-84. Member of Continental Congress. 
 
 1784. Commissioner to France. 
 
 1785-90. Minister to France. 
 
 1790-94. Secretary of State. 
 
 1798. Wrote Kentucky Resolutions. 
 
 1797-1801. Vice-President. 
 
 1801-09. President. 
 
 1803. Louisiana Purchase. 
 
 1806. Embargo. 
 
 1819. Founded University of Virginia. 
 
 1826. July 4. Died. 
 
 78 
 
IV 
 
 Thomas Jefferson, Growth through 
 Acquiescence 
 
 NONE of the statesmen of the Eevolutionary 
 period has exerted a greater influence upon 
 the succeeding generations of his countrymen than 
 Jefferson, but his influence has differed from that 
 of all the rest for it has been upon the spirit of the 
 people and their attitude toward their institutions 
 rather than upon the formation of the institutions 
 themselves. As the embodiment of the spirit of 
 democracy, his name is still a potent rallying cry 
 for a multitude of men. It is illustrative of the 
 peculiar character of his influence that men claim 
 him as their political guide whose views bear little 
 or no resemblance to his. 
 
 Jefferson's cardinal political principles were trust 
 in the people and an antipathy to government — 
 principles in themselves contradictory. Modern de- 
 mocracy has been more logical, for its trust in the 
 capacity and soundness of the masses has led it to 
 claim for them an ever increasing control over, and 
 a constant enlargement of, the sphere of governmental 
 activities. Jefferson's fear of the tyranny of gov- 
 
 79 
 
8o Story of the Constitution 
 
 eminent has been converted into a demand that 
 government by the people should be government for 
 the people; his anxiety lest it should prove an in- 
 strument to deprive them of their liberty has been 
 replaced by the determination to make it serve their 
 interests. As a result we see two processes of politi- 
 cal development going hand in hand; the one look- 
 ing to a steady enlargement of the direct participation 
 of the people in the constitution of governmental 
 agencies, and the other stretching out eagerly for 
 new ways in which the government may serve the 
 general interest. There is no longer the dread that 
 government may prove an engine for the destruction 
 of popular liberties, and herein democracy shows itself 
 more consistent than did Jefferson. 
 
 Hamilton, Wilson, and Jefferson present an in- 
 teresting contrast in their ideas of government and 
 their attitude toward the participation of the people 
 in it. Hamilton believed in a strong government in 
 the hands of the few, because he had no faith in 
 the great mass of mankind ^ ; Wilson believed in a 
 strong government because he had this faith and, 
 while agreeing with Hamilton in the value and 
 efficacy of government as an agent in the progress 
 of civilization, insisted that the foundation of all 
 government should rest upon the broad basis of 
 popular consent; thus established it should be in- 
 vested with a considerable degree of authority that 
 
 ' Hamilton recognized, however, that in a republic, at least, 
 all power must come from the people. " The fabric of Ameri- 
 can empire ought to rest on the solid basis of the consent of 
 the people. The streams of national power ought to flow im- 
 mediately from that pure, original fountain of all legitimate 
 authority." — Federalist, No. 22. 
 
Thomas Jefferson 8i 
 
 order and security miglit result.* Jefferson desired 
 as little of government as miglit be, since to him all 
 government was a limitation upon the freedom of 
 the individuals under it^; since he distrusted gov- 
 ernment as a means of progress, the essence of his 
 belief was laissez faire. 
 
 Jefferson was a well-to-do country gentleman of 
 Virginia, of a family long established in the State 
 but not numbered among the aristocratic inner cir- 
 cle.* Born in 1743, he was graduated from William 
 and Mary College in 1762, studied law under the 
 great master, George Wythe, and was elected a mem- 
 ber of the House of Burgesses in 1769. The temper 
 of the colonists toward the Crown showed itself im- 
 mediately upon the assembling of the Burgesses to 
 which Jefferson had been elected; within three days 
 the Governor dissolved them for passing a set of 
 resolutions " odiously like a Bill of Eights," and 
 eighty-eight of the delegates, among them Jefferson, 
 met the next day in the long room of the Raleigh 
 tavern and framed a non-importation agreement 
 against Great Britain. 
 
 At the next meeting of the Burgesses in 1773, 
 
 1 Documentary History of the Constitution, iii., 28. " He was 
 for raising the federal pyramid to a considerable altitude, and 
 for that reason wished to give it as broad a basis as possible. 
 No government could long subsist without the confidence of the 
 people." 
 
 2 " I am convinced that those societies (as the Indians) which 
 live without government enjoy in their general mass an in- 
 finitely greater degree of happiness than those who live under 
 European governments." Quoted in Morse, Thomas Jefferson, 
 p.. 83. 
 
 s The more important biographies of Jefferson have been writ- 
 ten by Morse, Parton, Randall, Schouler, and Tucker. 
 
82 Story of the Constitution 
 
 Jefferson with some half a dozen bold spirits met 
 privately and determined to establish a committee of 
 correspondence to facilitate the interchange of news 
 among the colonies. The result was that the Bur- 
 gesses were again dissolved, but nevertheless the 
 committee met on the following day and issued an 
 invitation to the other colonies to appoint similar 
 committees. Again the following year Jefferson was 
 a leader in the House of Burgesses which proclaimed 
 a day of prayer and fasting in behalf of Massa- 
 chusetts, then suffering on account of the Boston 
 Port Bill; again the Governor dissolved them; again 
 they met in the tavern and passed disloyal resolu- 
 tions, among them a resolution suggesting an annual 
 general congress of all the colonies, and another call- 
 ing for a Virginia convention to meet on the first 
 of the following August. Jefferson, though elected 
 a representative from Albemarle, was prevented by 
 illness from attending the State convention. The 
 draft of instructions he hoped would be given by 
 the convention to the delegates elected by it to the 
 general conference proved too radical. They were, 
 however, printed in pamphlet form under the title 
 of A Summary View of the Rights of British America , 
 and received wide circulation both in England and 
 America. 
 
 Soon afterward Jefferson was appointed a dele- 
 gate to the Second Continental Congress, in which 
 he took his seat on June 21, 1775, having delayed 
 in Virginia long enough to draw up a reply to the 
 " olive-branch " of Lord North. In the Congress his 
 talents, those of a writer, not a speaker, won recog- 
 nition, and his draft was the reply accepted and 
 
Thomas Jefferson 83 
 
 promulgated by Congress to Lord North's " concilia- 
 tory proposition." JelTerson unquestionably thought 
 that separation from the mother country was daily 
 approaching, yet " he was too thoughtful not to be a 
 reluctant revolutionist, but for the same reason he 
 was sure to be a determined one." ^ 
 
 Events moved rapidly in the years of 1775-6. 
 Paine's Common Sense had gone broadcast over 
 the country with Its bold plea for independence. 
 Lexington and Concord had been fought, Washington 
 had been appointed commander-in-chief, and Boston 
 had been besieged, when Virginia instructed her 
 delegates to move that Congress should declare " The 
 United Colonies free and independent States." ^ On 
 June 11th, Congress appointed a committee, of which 
 Jefferson was a member, to prepare a Declaration 
 of Independence. The actual task of drawing the 
 document was entrusted by the committee to Jeffer- 
 son. Such skill did he show in formulating the 
 thoughts in all men's minds, that, save for a few 
 slight changes proposed by Franklin and Adams in 
 the committee, the Declaration stands to-day as 
 Jefferson composed it.* That it was in no sense 
 new, Jefferson himself fully recognized. Its object 
 was " not to find out new principles, or arguments, 
 never before thought of, not merely to say things 
 which had never been said before," but " it was in- 
 tended to be an expression of the American mind." * 
 
 1 Morse, p. 26. 
 
 2 On June 7th, Richard Henry Lee of Virginia offered resolu- 
 tions in Congress declaring the colonies free and independent 
 States. 
 
 3 Works, i., 26 ff. 
 *Ibid., xvi., 118. 
 
84 Story of the Constitution 
 
 This declaration, the political creed of that and 
 succeeding generations, is too familiar to require ex- 
 tensive notice.^ Human equality, the natural and 
 inalienable rights of life, liberty, and the pursuit of 
 happiness, the protection of these rights as the func- 
 tion of government, the consent of the governed as 
 the foundation of all just governments, and the ulti- 
 mate right of revolution when government fails to 
 perform its functions, are the fundamental principles 
 embraced in it. They are also the basic principles 
 of all Jefferson's subsequent political thinking. 
 
 Though re-elected to Congress on June 20, 1776, 
 Jefferson declined to serve^ believing, as he later 
 said, that he could be of more use in forwarding the 
 work of remodelling the social and political fabric 
 of his native State, for with the sundering of the 
 ties of allegiance to the mother country, it became 
 necessary " to lay aside the monarchical, and take 
 up the republican, government," which, in a letter 
 to Franklin in 1777, he declared the State of Virginia 
 had done " with as much ease as would have at- 
 tended their throwing off an old and putting on a 
 new suit of clothes." 
 
 It was a period of revolution, of destruction and 
 re-creation, and the people were ripe for social and 
 political changes. There was little need of change 
 in most of the New England States; how little, is 
 evidenced by the continuation of the old colonial 
 charters of Connecticut and Rhode Island as their 
 State constitutions until well into the nineteenth 
 century. In Virginia there was need of more radi- 
 cal change before the life of the State and its 
 
 1 Cf. the Appendix for the text. 
 
Thomas Jefferson 85 
 
 political and legal institutions could rest upon a 
 democratic basis. Within her borders had been de- 
 veloped the nearest approach to an aristocracy to 
 be found anywhere upon this side of the Atlantic. 
 Her great estates, descending by entail and primo- 
 geniture and supported by slavery, had tended to 
 develop a landed gentry, an aristocracy of birth and 
 wealth, which had been also in large measure a 
 political aristocracy, for the political power of the 
 colony had been to a great extent in their hands. 
 Jefferson was not by birth a member of the inner 
 circle of this class; he was, furthermore, by nature 
 a radical and a reformer, and he was not slow to 
 take advantage of the disturbed political conditions 
 to put into execution his democratic beliefs. 
 
 Elected a member of the House of Delegates, he 
 began at once the work of reform, and just a week 
 after he took his seat on October 11, 1776, he brought 
 in a bill abolishing the whole system of entail, and 
 almost without a struggle the basis of the pseudo- 
 aristocracy was swept away. Primogeniture soon 
 met with a like fate. " At least," implored Pendle- 
 ton, " if the eldest son may no longer inherit all the 
 lands and slaves of his father, let him take a double 
 share." " No," said Jefferson, the leveller, " not till 
 he can eat a double allowance of food and do a 
 double allowance of work." 
 
 His next attack was upon the established church. 
 He desired complete religious freedom, but the most 
 he could accomplish was to induce the legislature, 
 the majority of whom were churchmen, to take the 
 first steps in that direction. But his efforts were 
 not in vain, for the spirit that he typified grew in 
 
86 Story of the Constitution 
 
 strength till in 1786 his original " bill for establish- 
 ing religious freedom " was passed with only slight 
 amendments. His elaborate plan for a school sys- 
 tem met with too decided an opposition from the rich 
 planters ever to be wholly adopted, but education 
 was one of his cardinal principles, and to his un- 
 tiring interest in its promotion, the University of 
 Virginia ever stands as a noble witness. 
 
 Jefferson was also appointed a member of a com- 
 mission to effect a general revision of all the laws 
 of Virginia. A civil and a criminal code were soon 
 drawn up, the latter noted for its abolition of the 
 severe penalties of the previous law. Much of this 
 work was too democratic to meet with immediate 
 approval and adoption, but the next ten years saw 
 the realization of practically all of his measures. 
 His proposals formed a sort of reservoir from which 
 succeeding legislatures drew. 
 
 Only in the matter of slavery did Jefferson meet 
 with entire defeat. He was always an opponent of 
 slavery, but the commission could only report a 
 " mere digest of the existing laws," hoping by amend- 
 ment, when the bill should be proposed, to secure 
 freedom to those born after a certain day. He felt 
 that the negro was by nature inferior to the white 
 in mental capacity, and that " the two races, equally 
 free, cannot live in the same government," and that 
 the attempt could only result in the extinction of 
 one race or the other. Such a view led him to pre- 
 pare a scheme of colonization, visionary and costly 
 beyond the possibility of fulfilment.^ 
 
 1 For a detailed account of Jefferson's services In the House 
 of Burgesses at this time, see Morse, pp. 36-50. 
 
Thomas Jefferson 87 
 
 The reforms, both actual and potential, during his 
 two years of membership in the Legislature, must 
 always be reckoned among Jefferson's most lasting 
 and brilliant achievements. He did not accomplish 
 them alone and single-handed. He was the leader 
 around whom was gathered a group of brilliant young 
 men, among them Madison, for so large a part of his 
 life Jefferson's devoted follower. Jefferson caught 
 up the spirit of the people and gave it expression 
 almost before they became conscious of their own 
 desires. His abiding faith in the multitude, in the 
 great mass of the people, in the correctness of their 
 judgment and the justness of their cause, was the 
 secret of his success as the greatest political leader 
 this country has produced. But it was a leadership 
 with, not against, a rising tide of popular desire. 
 One cannot well imagine Jefferson standing alone 
 in the maintenance of convictions opposed to the 
 popular will.^ 
 
 In 1779 Jefferson was elected Governor of Virginia 
 to succeed Patrick Henry, and for two years filled 
 the office with little credit to his reputation. They 
 were years of sore trial for the State, which suf- 
 fered from repeated inroads and invasions by the 
 British. Jefferson was pre-eminently a lover of 
 I)eace, and as war-governor he found himself in a 
 situation with which his inclinations and abilities 
 did not fit him to cope, and at the close of his 
 second term he retired with a heart filled with bitter- 
 ness and resentment and with the express intention 
 of withdrawing forever from public life. For three 
 
 1 Oliver, 267. Book iv., chap, i., pp. 251-270, contains an ex- 
 tremely clever analysis of Jefferson's character. 
 
88 Story of the Constitution 
 
 years he devoted himself to his private interests. At 
 the end of this time he was recalled from his retire- 
 ment by an election to Congress in 1783, where he 
 had the pleasure of signing the treaty with Great 
 Britain which recognized the Independence he had 
 been instrumental in proclaiming seven years before. 
 It fell to his lot, also, to hand over to Congress 
 Virginia's deed to the Northwest Territory and to 
 prepare for it a plan of government in which slavery 
 was to be forever prohibited after the year 1800. 
 
 In 1784 Jefferson retired from Congress and al- 
 most immediately was appointed to aid Franklin 
 and Adams in the negotiation of commercial treaties, 
 and in the following year was made sole Minister to 
 France where he remained until 1790. 
 
 These years of foreign residence were years of 
 tremendous importance for France and for America. 
 In France they witnessed the brewing and break- 
 ing of the storm of revolution which was destined 
 to sweep away all remnants of the old order of 
 despotism, to run through the mad follies of the 
 Eeign of Terror, to degenerate into brutal and un- 
 bridled license, and to give way finally to a military 
 despotism. 
 
 In America they beheld what seemed to be a fruit- 
 less effort to reap the rewards of a revolution al- 
 ready successfully accomplished; beheld a jealousy 
 and distrust of government that boded ill for the 
 success of liberty; then saw a reaction set in against 
 what, to sober minds, seemed not far removed from 
 anarchy, and heard no little talk of the failure of 
 republican institutions and the need of the strength 
 and order of a monarchy. Truly Liberty seemed in 
 
Thomas Jefferson 89 
 
 a perilous plight! That it was saved both from 
 monarchy and disintegration was due to the wise 
 counsels and patriotic efforts of the men of the Con- 
 vention, who were willing to sacrifice personal pref- 
 erences to the general good, and who were not afraid 
 of the spirit of compromise. 
 
 No Frenchman could have been more interested 
 in the success of the Revolution in France than was 
 Jefferson, and no one had better opportunities of ob- 
 serving its progress than he. The French found in 
 him a kindred spirit, and took him into their coun- 
 sels. He had been a leader in the revolutionary 
 movement in his own country, and had proclaimed 
 the equality of mankind in the Declaration of Inde- 
 pendence. Little wonder, then, that he sympathized 
 with the French people in their efforts against gov- 
 ernment, or that " they recognized him as one of 
 themselves, a speculative thinker concerning the 
 rights of mankind, a preacher of extreme doctrines 
 of political freedom, a deviser of theories of govern- 
 ment, a propounder of vague but imposing generaliza- 
 tions, a condemner of the fetters of practicability — in 
 a word, by the slang of that day, a ' philosopher ' ; 
 and they liked him accordingly." ^ 
 
 It did not take such experiences to make of Jefferson 
 a radical in matters of government; they only served 
 to strengthen and confirm opinions already existing, 
 for a radical he was by nature. So it is not to be 
 wondered at that a man, who, almost while the Con- 
 vention was in session at Philadelphia, could say 
 that rebellion " is a medicine necessary for the sound 
 health of government," and " God forbid we should 
 
 1 Morse, p. 77. 
 
go Story of the Constitution 
 
 ever be twenty years without such a rebellion " (as 
 Shays's)/ should, when the Constitution' was pub- 
 lished, have said that there were in it " things which 
 stagger all my dispositions to subscribe to what such 
 an Assembly has proposed." ^ 
 
 Cut oflf for five years by his mission to France 
 from anything like close association with America, 
 he knew it only as it was during the fervor of the 
 revolutionary struggle, when mutual interests and 
 the common need of defence held the colonists to- 
 gether; he lacked personal experience of the slack- 
 ening of the bonds of union, of the dangers and 
 distress resulting to the government of the Con- 
 federation, of its utter inadequacy and failure. 
 Missing the full significance of the years of the 
 " Critical Period," untouched by the keen struggle 
 within the Convention itself, with an antipathy to 
 all strong governments, his first criticisms of the 
 Constitution were indeed severe, but upon further 
 consideration and under the influence of the argu- 
 ments of men like Madison and Monroe, he came 
 to view it as did many others, as the best that could 
 be secured under the circumstances and as worthy 
 of adoption for the good it brought, hoping that a 
 favorable moment would come for correcting what 
 was amiss in it.^ In the end his chief objections to 
 it lay in the absence of a Bill of Rights and in the 
 re-eligibility of the President. The first was soon 
 removed by the adoption of the first ten amendments 
 which the advocates of the Constitution did not 
 
 1 Works, vl., 372. 
 
 2 Ibid., vi., 370. 
 s Ibid., vi., 392. 
 
Thomas Jefferson 91 
 
 oppose so much in theory as on the ground that 
 they were unnecessary, now that a republican form 
 of government was to be set up in which the rights 
 of the people could only be encroached upon by their 
 own representatives. Jefferson's zeal for such a 
 declaration would seem to be but another manifesta- 
 tion of that visionary element in his nature which 
 delighted in vague generalizations and high-sounding 
 phrases, the futility of which was never apparent 
 to him.^ 
 
 The second objection has been practically removed 
 by the custom, inaugurated by Washington and fol- 
 lowed by succeeding Presidents, of limiting the hold- 
 ing of the office to two terms. 
 
 Immediately upon his return from France, Jeffer- 
 son was appointed by Washington the Secretary of 
 State. The new government had been established 
 nearly a year when he arrived in New York on 
 March 21, 1790. Hamilton had already secured the 
 passage of the bills for the assumption of the public 
 debt, both foreign and domestic, but his third meas- 
 ure providing for the assumption by the new govern- 
 ment of the debts contracted in the war by the 
 individual States had met with defeat by a narrow 
 margin in the House of Representatives. Then was 
 enacted that first bit of "log-rolling" by which 
 Hamilton agreed to turn over enough Northern votes 
 to secure the location of the national capital upon 
 the Potomac and Jefferson enough Southern votes 
 to ensure the passage of the third assumption bill. 
 It was a transaction that Jefferson soon came bitterly 
 to regret, and for his part in it could offer no better 
 1 Oliver, op. cit, p. 258. 
 
92 Story of the Constitution 
 
 excuse than to impugn his own political wisdom by 
 declaring he had been duped by Hamilton. The 
 truth would seem to be that Jefferson did not ap- 
 preciate at the time the full significance of Hamil- 
 ton's financial measures in strengthening the powers 
 of the Federal Government. Such a view seems all 
 the more credible when we reflect that Jefferson was 
 hopelessly unable to understand the financial policy 
 of Hamilton and as late as 1818 spoke of it as a 
 " puzzle." 
 
 The opposition between the two men was not slow 
 in developing. It could not have been otherwise. 
 They were essentially different in every character- 
 istic of mind and taste. Hamilton, young, daring, 
 and impetuous, ready of tongue and pen, matchless 
 as debater and controversialist, an ardent advocate 
 of order and strength in government, credited with 
 a strong taste for monarchy and an equally strong 
 distrust of republican institutions and the judgments 
 of the people; an aristocrat in temper and bearing, 
 with an aristocrat's fine imperiousness and hardly 
 concealed contempt for the common herd: Jefferson, 
 middle-aged, slow, and cautious, a compound of 
 dreamer and political seer, skilled likewise in writ- 
 ing but lacking in the art of speech, with a natural 
 bent toward peace and a dislike of open combat so 
 strong that his enemies called him sly; a hater of 
 all governments, with an earnest desire to have as 
 little of the evil as possible; a radical, a revolution- 
 ist, an ultra-democrat, for whom an abiding faith in 
 the masses served almost for a religious creed; an 
 unrivalled organizer and leader, knowing how to 
 guide and direct without seeming to command. 
 
Thomas Jefferson 93 
 
 It was inevitable that these two should differ, al- 
 most that they should typify the contending forces 
 of all our national life. 
 
 Hamilton struck out boldly in the direction in 
 which he had foreseen lay the only hope of safety 
 for the new government. While the machinery of 
 it was new and untried, when none could tell with 
 certainty whether the various parts, not made alto- 
 gether to anybody's liking, would work in harmony 
 when once the motive power was applied, and while 
 many doubted if it could be made to go at all, he 
 saw with a statesman's eye that money was the uni- 
 versal solvent of most, if not all, the dif&culties; it 
 would serve as fuel for the engine and lubricant for 
 the creaking joints to render workable the patch- 
 work of the Convention. He set out, therefore, to 
 enlist men's interest until their patriotism could be 
 awakened, and, almost before it was realized, he had 
 started the new government along the road to fame 
 and fortune by that masterly series of financial 
 measures that culminated in the establishment of a 
 National Bank. Jefferson, as we have seen, did not 
 at first appreciate the full significance of these suc- 
 cessive steps, but once aroused, his suspicions far 
 outran what the facts would justify; his imagina- 
 tion saw countless dangers in this financial " puzzle " 
 which he could not understand, and his fears so far 
 got the better of his judgment as to lead him to see, 
 in all that Hamilton was doing, the deep-laid plots 
 of a " monarchist " ; he professed to believe that 
 Hamilton was bent on subverting republican in- 
 stitutions by the aid of a " corrupt squadron " in the 
 Legislature, bound to him by the financial favors 
 
94 Story of the Constitution 
 
 they had secured through his financial measures.^ 
 Genuinely alarmed for the safety of all his ideas 
 of government, Jefferson set to work to hinder and 
 thwart Hamilton in every way he could. To stop 
 this mad career of the government on its road to 
 monarchy was his first object; that accomplished, it 
 would then be time to set about undoing what had 
 already been done. 
 
 To accomplish these purposes Jefferson bent all 
 his talents of organization and all the resourceful- 
 ness of his versatile mind, but it was a task of 
 herculean difficulty that confronted him. As an op- 
 ponent, he had a man of consummate ability and 
 courage, without a match in an open debate or a 
 written discussion, the head of a party composed of 
 a large part of the wealth and culture of the nation 
 — a party devoted to its leader and his principles, 
 a party upon which it was generally known that 
 Washington looked with sympathy and which enjoyed 
 in consequence the prestige of his great name. But 
 Jefferson was not daunted by the prospect of such 
 an overwhelming opposition; the nucleus of a party 
 was ready to hand, composed of all those elements 
 in any way discontented with the course of the 
 Federalists or with their leader; and these were not 
 a few, for Hamilton made bitter enemies as well as 
 staunch friends, and his policies excited fear in other 
 minds than that of Jefferson. It was not the work 
 of a day or of a year to consolidate these elements 
 and to gather to them the great mass of the people; 
 no one knew this better than Jefferson, and no one 
 with less confidence in the ultimate triumph of the 
 iC/. Morse, op. cit., p. 100 ff. 
 
Thomas Jefferson 95 
 
 masses of the people would have had the courage to 
 lead the fight. Though it might be long in coming, 
 Jefferson foresaw the final victory of mere numbers 
 if only they could be brought to act in harmony, and 
 trusting to his own ability to furnish the organization 
 necessary to produce harmonious action, he could 
 patiently await the day of victory. 
 
 That his triumph came so soon was largely due to 
 the sudden shifting of popular interest from domestic 
 to foreign affairs. The wave of popular enthusiasm 
 for Republican France threatened to become tidal in 
 its force, and destructive of that admirable position 
 of neutrality so heartily desired by Washington. 
 Jefferson was thoroughly in sympathy with the efforts 
 of the French people and was not to be discouraged 
 by the foolhardy conduct of a Genet on this side, or 
 the wild excesses of the Reign of Terror, or the pusil- 
 lanimity of the Directory, on the other side of the 
 Atlantic, though he was shrewd enough to abstain 
 from countenancing them, tliat when the reaction 
 came as a result of offended national dignity, he was 
 able quietly to step aside only to reappear later as all 
 the greater leader because he had foreseen and even 
 predicted these very results. 
 
 It was trouble with France which gave rise to the 
 now famous Alien and Sedition Acts, and the no 
 less famous Virginia and Kentucky Resolutions of 
 1798 and 1799. In their desperation at the malignant 
 assaults made upon President John Adams, and the 
 almost unbridled license of the Republican press 
 in its abuse of their principles, the Federalists were 
 goaded into passing these laws, putting into the 
 hands of the Chief Executive such great powers over 
 
96 Story of the Constitution 
 
 individual liberty and containing such unwarranted 
 infringements of the right of free speech that the 
 country over, a loud and angry cry arose against 
 their unconstitutionality. Jefferson and the Demo- 
 cratic-Kepublican party eagerly seized the oppor- 
 tunity to fasten the odium of it upon the Federalists. 
 
 This, however, was not sufficient for Jefferson; 
 even the bounds of " loose " construction had been 
 exceeded and the integrity of the Constitution was 
 at stake. To bring this home to the people of the 
 individual States, to secure their co-operation in 
 putting a check upon the unwarranted exercise of 
 power by the Federal Government, and in doing so 
 to give expression at the same time to his funda- 
 mental notion that it was merely a league of States, 
 a " voluntary confederation," in which the States 
 retained their sovereign right of ultimate judgment 
 in all matters affecting their reserved rights, Jeffer- 
 son chose the medium of the State Legislatures of 
 Virginia and Kentucky. With his own hand he 
 prepared the resolutions he wished presented to, and 
 adopted by, the Kentucky Legislature, while to his 
 devoted friend and follower, Madison, was deputed 
 the like task for the Legislature of Virginia.^ 
 
 Hot-headed Kentucky, however, was not yet ready 
 to go the full length proposed by Jefferson, and in 
 the Eesolutions of 1798 contented itself with declar- 
 ing that the Constitution was a compact to which 
 the States were parties; that by it they had estab- 
 lished a government of definite and limited powers, 
 reserving to themselves or to the people all other 
 powers; that every assumption by the general gov- 
 
 ^Cf. G. Hunt, Life of James Madison, p. 251. 
 
Thomas Jefiferson 97 
 
 eminent of undelegated powers was null and void, 
 and that each State as a party to the compact had 
 a right "to judge for itself, as well of infractions 
 as of the mode and measure of redress." The Alien 
 and Sedition laws were emphatically declared to be 
 " altogether void and of no force " and the other 
 States were called upon to join her in securing 
 measures of redress. 
 
 In his original draft, Jefferson had asserted that 
 " where powers are assumed which have not been 
 delegated, a nullification of the act is the rightful 
 remedy; that every State has a natural right in cases 
 not within the compact, (casus non foederis), to 
 nullify of their own authority all assumptions of 
 power by others within their limits," and in a second 
 set of Eesolutions, passed in the following November 
 (1799), the Legislature of Kentucky, acting upon this 
 suggestion, made an alarming addition to its pre- 
 vious Resolutions, when it declared " that the prin- 
 ciple and construction . . . that the general government 
 is the exclusive judge of the extent of the powers 
 delegated to it, stop not short of despotism, since 
 the discretion of those who administer the govern- 
 ment, and not the Constitution, would be the measure 
 of their powers : That the several States who formed 
 that instrument, being sovereign and independent, 
 have the unquestionable right to judge of the infrac- 
 tion ; and, That a nullification, hy those sovereignties 
 of all unauthorized acts done under color of that 
 instrument, is the rightful remedy." ^ 
 
 The nullification of an act of the Federal Govern- 
 
 1 Cf. Appendix for text of the Virginia and Kentucky Reso- 
 lutions. 
 
98 Story of the Constitution 
 
 men t by a single State perhaps went further than 
 Jefferson had really intended. Certain it is that 
 late in life he took a different view. " The ultimate 
 arbiter," he said, " is the people of the Union, as- 
 sembled by their deputies in convention at the call 
 of Congress, or of two thirds of the States." And 
 Madison was at great pains to show that it was not 
 a " constitutional," but a " natural " right, — that of 
 revolution, — which was meant by both the Virginia 
 and Kentucky Resolutions.^ 
 
 The triumph of Jefferson in the election of 1800 
 did not bring the overthrow of the measures which 
 had given strength to the government. There was, 
 to be sure, some attempt made in the earlier years 
 to lessen the expenses of the central government, 
 and the army and navy underwent what Jefferson 
 himself called a " chaste reformation " ; but Hamil- 
 ton had correctly estimated Jefferson's character and 
 course when he wrote to Bayard that " he [Jefferson] 
 is as likely as any man I know to temporise, to cal- 
 culate what will be likely to promote his own repu- 
 tation and advantage; and the probable result of 
 such a temper is the preservation of systems, though 
 originally opposed to them, which, being once estab- 
 lished, could not be overthrown without danger to 
 the person who did it." ^ External reforms there 
 were, but not a single limitation of dangerous powers 
 or curtailment of latent strength. In the purchase 
 of Louisiana, moreover, the doctrine of " strict con- 
 struction " received an irremediable hurt. Jefferson 
 
 1 Letters and Other Writings of James Madison, vol. iv., 
 passim. 
 
 2 Works, X., 413. 
 
Thomas Jefferson 99 
 
 acknowledged that " the executive, in seizing the 
 fugitive occurrence which so much advances the good 
 of their country, has done an act beyond the Consti- 
 tution. The legislature . . . must ratify and pay 
 for it, and throw themselves on their country " for 
 an act of indemnity.^ He drew up an amendment 
 to the Constitution to cover the case and urged his 
 friends not to make the Constitution a " blank paper 
 by construction " ^ ; but his party skipped lightly over 
 the constitutionality of the acquisition, the amend- 
 ment was not pressed, and Jefferson acquiesced.® 
 
 Strange conduct this for a man who believed the 
 Constitution was a compact entered into by sov- 
 ereign States for the attainment of certain specific 
 objects, and that any measure likely to change the 
 fixed relationships thus established must be agreed 
 to by all the parties. Little reverence had he for 
 the security furnished by " the possession of a 
 written constitution," when the provisions of that 
 constitution stood in the way of accomplishing pur- 
 poses he desired! Not all the Federalist stretches 
 of constitutional provisions in the twelve years of 
 their power could surpass this one in importance, 
 and Jefferson, as the leader of the Democratic- 
 Eepublican party, must share in the responsibility 
 for it. In the course of his two administrations, the 
 Democratic-Republican party performed successfully 
 the larger part of the feat of swallowing the Fed- 
 eralist party and its principles. His futile efforts 
 
 1 Works, X., 411. 
 ^Ibid., X., 419. 
 
 3 Ibid., X., 420. " If, however, our friends shall think dif- 
 ferently, certainly I shall acquiesce with satisfaction." 
 
loo Story of the Constitution 
 
 to maintain our rights against England and France 
 were carried through Congress without question, and 
 the Embargo, with its Enforcing Acts, surpassed 
 the Alien and Sedition Laws in their encroachments 
 upon individual liberty. 
 
 Jefferson's later years were spent in the retire- 
 ment of Monticello, whither the country turned again 
 and again for words of wisdom from the " Sage." 
 He beheld the great triumph of Democracy, but with 
 it the growth of a truly national sentiment, coincident 
 with an ever increasing power in the hands of the 
 national government. His success was in his faith, 
 not in his works. From the standpoint of actual 
 achievement in national affairs, only the Louisiana 
 Purchase saves him from complete failure; from the 
 standpoint of political influence his faith in the peo- 
 ple makes him a vital force to-day. His greatest 
 fault was that " he died, as he had lived, in the odour 
 of phrases " ^ ; his greatest virtue that he was wise 
 enough to sacrifice phrases to reality, to accept in 
 practice what he rejected in theory. 
 
 1 Oliver, p. 256. 
 
V 
 
 James Madison. Growth, through 
 Formulation 
 
JAMES MADISON 
 
 1751. March 16. Born in King George County, Va. 
 1771. Graduated from College of New Jersey. 
 
 1774. Member of Committee of Safety from Orange 
 
 County. 
 1776. Delegate to State Convention. 
 
 1780. Delegate to Continental Congress. 
 
 1784-86. Representative in State Legislature. 
 
 1786. Represented Virginia at Annapolis Conven- 
 
 tion. 
 1786-88. Delegate to Continental Congress. 
 
 1787. Member of Constitutional Convention. 
 1789-97. Member of Congress and leader of Republican 
 
 Party. 
 
 1798. Author of Virginia Resolutions. 
 
 1801-09. Secretary of State. 
 
 1809-1817. President. 
 
 1812-14. War. (June 18, 1812-Dee. 24, 1814.) 
 
 1829. Member of Virginia Constitutional Conven- 
 
 tion. 
 
 1836. June 28. Died at Montpelier, Va. 
 
James Madison. Growth through 
 Formulation 
 
 MADISON has often been called the "Father 
 of the Constitution " and the title is well- 
 bestowed, for no man saw more clearly than he the 
 weakness of the Confederation and the need for a 
 stronger Union; no one strove more diligently or 
 successfully to secure the Annapolis, and later the 
 Constitutional, Convention; no one in the Federal 
 Convention was more influential in determining the 
 form the new constitution should take; no one was 
 more valiant in defence of the work of their hands, 
 and no one was more skilful in securing its adoption; 
 not alone in the convention of his native State, but, 
 through the Federalist, in those of other States, his in- 
 fluence in favor of ratification was strong. 
 
 When the work of formulation and adoption was 
 over, only the first step toward national Union had 
 been taken; in it Madison played a principal part; 
 in the second step of administering the new govern- 
 ment that had been formed, in bringing into opera- 
 tion national forces, Madison appears as leader of 
 the opposition in Congress, and there arose a bitter 
 
 103 
 
I04 Story of the Constitution 
 
 personal and political animosity to Hamilton and to 
 all of his measures that tended toward a strong 
 Federal Government,^ 
 
 In the Constitutional Convention and in the State 
 /conventions for adopting the Constitution, parties 
 
 I divided on the question of the kind of government 
 to be instituted, on the question whether it should 
 
 i be a loose confederation of sovereign States or a 
 
 Federal Government, national in its purposes and ex- 
 
 ^ f tent and supreme within its sphere. After the adop- 
 
 ' tion of the Constitution the question that divides 
 
 ijhem is not one of kind, but of extent. How far 
 has this national government been entrusted with 
 powers by the Constitution? 
 
 On the question of the interpretation of the Con- 
 stitution, Madison followed the lead of Jefferson 
 rather than that of Hamilton and ranked himself un- 
 der the banner of " strict construction." To his old 
 friends the change appeared a desertion from motives 
 of political preferment. Though motives of policy 
 and personal friendship for Jefferson had their 
 weight, a deeper motive must be sought. It will be 
 
 ■^found in the real difference between the States, which 
 Madison repeatedly declared was not between the 
 large and the small States, but between the North 
 and the South, between commerce and agriculture, 
 between free and slave, and Madison followed 
 Virginia and the South.^ 
 
 As President, Madison carried out the policies of 
 Jefferson till forced into an unwelcome party war 
 
 1 S. W. Gay, James Madison, p. 144 ff. 
 
 2 Ibid., p. 164. " The institution of slavery and its con- 
 sequences formed the line of discrimination." 
 
James Madison 105 
 
 in violation of his personal feelings and of his po- 
 litical faith. The results of the war did more to 
 strengthen the bond of union and sense of national 
 feeling than any previous event in the country's his- 
 tory, and Madison thereby became the unconscious 
 agent of the centralizing forces to which he was so 
 ardently opposed. The later years of his life were 
 spent in trying to teach his countrymen the true ex- 
 position of the Constitution, but his words fell upon 
 the ears of unresponsive, though deferential, hearers. 
 
 For more than forty years Madison filled, almost 
 without interruption, some public office, but his 
 talents were not always of the sort that fitted him 
 for the performance of the duties of the position to 
 which he was called. His career falls naturally into 
 the three periods of legislative activity, executive 
 functions, and retirement devoted to exposition. The 
 first closed with his retirement from the Virginia 
 Assembly in 1800, the second with the conclusion of 
 his second term as President in 1817, and the third 
 with his death in 1836. 
 
 Born of a well-to-do Virginia family in 1751, grad- 
 uated from the College of New Jersey at Princeton 
 in 1771, Madison entered upon a career of political 
 life with more than the average social and intellec- 
 tual equipment.^ Almost immediately upon his 
 return from college, where he had lingered for an 
 additional year of study, he was made a member of 
 the " Committee of Safety " of his native county of 
 Orange. Two years later he was a delegate to the 
 State convention which instructed its representatives 
 in the Continental Congress to propose a Declaration 
 
 1 Biographies by Rives, Gay, and Hunt. 
 
io6 Story of the Constitution 
 
 of the Independence of the colonies. The convention 
 then proceeded to draw up a Bill of Rights and a 
 constitution; Madison was appointed a member of 
 the committee on the constitution and at the age of 
 twenty-three made his first attempt at formulating 
 jan instrument of government. To him is to be at- 
 tributed the authorship of the clause in the Bill of 
 Eights declaring that " all men are equally entitled 
 to the free exercise of religion according to the 
 dictates of conscience." ^ 
 
 In 1780 we find him making his entrance into na- 
 tional affairs — if such they could be called — as a 
 delegate to the Continental Congress, where he soon 
 became chairman of the Committee on Foreign 
 Relations ; he opposed vigorously the proposed cession 
 of the Mississippi valley to Spain in return for an 
 alliance, and only under protest would he instruct 
 Jay to this effect; when the surrender of Cornwallis 
 made the recall of the instructions possible, he lost no 
 time in doing so. Already he caught some glimpse 
 of the future of the United States; already there 
 was dimly conscious to his mind some vision of the 
 great nation that should go sweeping to the Pacific, 
 and from this time until the Constitution was adopted 
 there was no stauncher advocate than he of the estab- 
 lishment of a union with a strong central govern- 
 ment; — a union and a government strong enough to 
 enable the people to enter into the great heritage of 
 the West, as well as of the East. 
 
 Lilie most of the thoughtful men of the day, Madi- 
 son saw that the weakness of the Confederation was 
 rooted in its powerlessness to raise money; the lack 
 
 1 Gay, op. cit., p. 16. 
 
James Madison 107 
 
 of money in this case was the root of all evil, for, 
 as he said, that lack " is the source of all our public 
 difficulties and misfortunes."^ He persistently urged 
 upon Congress and the States the adoption of ade- 
 quate revenue measures. The Articles of Confedera- 
 tion provided that the expenses of the war should 
 be borne by the States in proportion to the value of 
 their lands. Upon a proposal to amend this provi- 
 sion and to substitute population for lands, the 
 question immediately arose whether the slaves should 
 be counted in the enumeration; after much heated 
 discussion and sharp divergence between the North- 
 ern and the Southern States, Madison proposed " in 
 order to give a proof of the sincerity of his profes- 
 sions of liberality, that slaves should be rated as 
 five to three." ^ The proposal was adopted and be- 
 came the precedent for the action of the Federal 
 Convention four years later in the compromise on 
 representation. 
 
 Madison was a leading spirit in the movement that 
 led up step by step to the calling of the Constitu- 
 tional Convention. He first suggested to Jefferson, 
 then a delegate in Congress, the " anomalous con- 
 dition of things on the Potomac," and proposed a 
 conference with the Maryland delegates upon the 
 subject. They received Jefferson's suggestion for a 
 commission favorably and the Legislature of the 
 State appointed it, but when the commissioners met 
 with those from Virginia they found themselves un- 
 able to settle all the questions involved. Pennsyl- 
 vania and Delaware had interests in any commercial 
 
 1 Writings, ed. by Gaillard Hunt, vi., 93. 
 
 2 Gay, op. cit., p. 41. 
 
 U^ 
 
io8 Story of the Constitution 
 
 regulations for the river and it was determined by 
 the Legislature of Maryland, upon consideration of 
 the report of the commissioners, to widen the scope of 
 action and an invitation was issued to all the States 
 to send delegates to a convention at Annapolis. Madi- 
 son, in the Virginia Legislature, secured the appoint- 
 ment of commissioners from the State. The story of 
 how the Annapolis Convention led to the calling of 
 the Convention at Philadelphia has already been told.^ 
 
 Among the distinguished delegates from Virginia 
 Madison's name ranks next to that of Washington. 
 Feeling the tremendous importance of the issue at 
 stake, he set about to fit himself as fully as possible 
 for the high task by mastering the history of con- 
 federacies and federal arrangements, both ancient 
 and modern, and after the Convention had begun its 
 deliberations, with almost incredible assiduity, he 
 made notes of the debates while they were in pro- 
 gress; these he subsequently transcribed at length, 
 thus furnishing us with an invaluable record of the 
 struggle that raged round the forming of the Consti- 
 tution and leaving a priceless commentary on the 
 character and talents of the members.^ 
 
 Madison, in conference with the other delegates 
 from Virginia, drew up in advance the outline of a 
 government which Eandolph submitted to the Con- 
 vention and which became known as the " Virginia 
 plan." ^ This plan provided for a radical change in 
 the nature of the Union, the change from a mere 
 
 1 Cf. Chap. I. 
 
 2 Writings, vols. iii. and iv. " Journal of the Constitutional 
 Convention." Found also in Elliot's Debates, vol. v., and in the 
 Documentary History of the Constitution, vol. iii. 
 
 3 Writings, iii., 17 ff, and Doc. Hist., iii., 17 ff. 
 
James Madison 
 
 109 
 
 league of discordant states to a national state, ex- 
 ercising its authority directly and, within its sphere, 
 supremely over the individuals composing it. 
 
 Madison believed it essential, if the Union was to 
 be preserved, that there should be a change from the 
 basis of the old Confederation: its foundation was 
 laid in fundamental error and a return to first prin- 
 ciples was necessary; its defects were radical and 
 unalterable so long as the Union remained a mere 
 confederacy.^ The chief faults of the Confederation 
 were three in number: first, that it attempted to 
 exercise authority over the States in their corporate 
 capacity without reaching the individuals who com- 
 posed them ; second, that each State had an equal 
 voice in the deliberative council of the Union; third, 
 that it lacked the sanction of the authority of the 
 people for its laws. So long as these defects re- 
 mained, there could be no hope of strength or unity, 
 of action in the government; but Madison was far 
 from desiring a consolidation of the States which 
 would destroy their identity and individuality. Like 
 Wilson, he desired a confederated republic, " an 
 association of two or more states into one state," 
 - — a " form of government by which several smaller 
 states agreed to become members of a larger one, 
 which they intend to form." Yet Madison never 
 seemed to grasp with the same precision and clear- 
 ness as Wilson, the idea of a new state thus formed, 
 composed of the individuals of all the States. There 
 is lacking any clear-cut conception of the whole 
 people, united by the Constitution into a single state, 
 
 
 --j!x 
 
 J 
 
 1 Writings, iii., 200 ff, and Doc. Hist., iii., 151 ff. 
 
no Story of the Constitution 
 
 irrespective of the existence of the State governments, 
 for the purposes for which it was established. 
 
 Wilson had said that, " in considering the national 
 government and its purposes, the State governments, 
 were to be regarded as non-existent." ^ To such a 
 conception as this Madison never attained. For him 
 the national (government is always a compound form, 
 partaking both of a national and a federal character. 
 " In its foundation it is federal, not national ; in the 
 sources from which the ordinary powers of the gov- 
 ernment are drawn, it is partly federal and partly 
 national; in the operation of these powers, it is 
 national, not federal; in the extent of them, again, 
 it is federal, not national ; and, finally, in the authori- 
 tative mode of introducing amendments, it is neither 
 wholly federal nor wholly national." ^ Though Madi- 
 j j son declared the Constitution to be the supreme law 
 of the land, though he denied that it was a treaty, 
 dependent on the good faith of the individual States, 
 and though he maintained that the national govern- 
 ment is the judge of its own powers, and that if it 
 oversteps its bounds the people are to judge and 
 ; to institute correction, yet the States as sovereign- 
 ties and their governments subtended a far larger 
 angle in his horizon than in that of Wilson or 
 Hamilton. 
 
 This became evident in the first Congress, in which 
 ^ladison was a representative from Virginia. De- 
 spite the extent of his labors in the Constitutional 
 Convention to secure strength for the new govern- 
 ment; despite the vigor of his advocacy of its adop- 
 
 1 Writings, iii., 279, and Doe. Hist., iii., 209. 
 
 2 Federalist, Ford's edition, No. 39. 
 
James Madison nx 
 
 tion, bbtli in, the Federalist and in the Virginia 
 Convention, when once the Constitution was adopted 
 and the new Federal Government set in motion, Madi- 
 son found himself immediately in opposition to 
 Hamilton and his financial measures. The great 
 difflciilty that had confronted the members of the 
 Constitutional Convention had been to secure even 
 a minimum of strength for the central government; 
 to accomplish this end Madison labored with a zeal 
 and ardor of expression which it is difficult to recon- 
 cile with his later and more cautious views. As the 
 new ^government which had been wrought out with 
 such infinite toil and solicitude, which seemed so new 
 and weak in comparison with tbe great States of 
 Virginia and Massachusetts, grew in a single night 
 under th6 magic spell of Hamilton's financial meas- 
 ures and constitutional doctrines, Madison drew 
 back before the work of his own hands and, as a 
 member of Congress, sought to stem the rising tide 
 of federal greatness that seemed to him to threaten 
 with extinction the States, the basis of the Union.'^ 
 He could no longer follow Hamilton and an old 
 political and personal friendship was broken; a new 
 association with Jefferson and the strict construc- 
 tionists was formed. But Madison could never break 
 away altogether from old traditions and association; 
 he could never become the radical democrat and 
 extremist in regard to the limitation of the powers 
 of all governments, and of the Federal Government 
 in particular, that Jefferson was. 
 
 The success of the Federalist party and the in- 
 temperate abuse of the Democratic-Eepublicans com- 
 
 1 Gay, op. cit., p. 144 ff. 
 
112 Story of the Constitution 
 
 bined to drive the former party to pass those extreme 
 measures, the Alien and Sedition Acts of 1798. They 
 were the culminating points in the long series of 
 measures by which the power of the central govern- 
 ment had been increased since Hamilton had first 
 introduced his financial measures nearly ten years 
 before. They proved to be the final straw that broke 
 the supremacy of the Federalist party. Threatening 
 as they did the rights of individual liberty, as well 
 as conferring undue power upon the Executive, they 
 were far more influential as the end of a series of 
 aggressions than they could ever have been had they 
 stood alone. They went further than the good sense 
 of the people deemed wise, and after their passage 
 nothing could have stayed the doom of the Federalist 
 party. 
 
 The opponents of the measures and of the party 
 that had fathered them, everywhere raised the cry 
 that the acts were unconstitutional. No one assailed 
 the measures more vigorously, or more covertly, than 
 Jefferson, whose position as Vice-President made it 
 inexpedient for him to come out openly as the leader 
 of the opposition, and whose disposition always led 
 him to fight through others. Jefferson, however, was 
 the recognized leader of the Democratic-Republican 
 party, and it was well understood that anything 
 done by the party or its more prominent representa- 
 tives was done either at his instigation or with his 
 acquiescence. 
 
 On this occasion action was taken at the instiga- 
 tion of Jefferson in the form of the Kentucky and 
 Virginia Resolutions of 1798; a draft for the former 
 was made by Jefferson with his own hand, but it was 
 
James Madison 113 
 
 somewhat modified before adoption by the Legislature. 
 The Virginia Resolutions were drawn up by Madison 
 after consultation with Jefferson, and are worth a 
 detailed consideration, both from their importance 
 at the time and from the later significance attached 
 to them upon the proposal of the doctrine of 
 Nullification.^ 
 
 It must be borne in mind that at this time the 
 right of the Supreme Court to declare a law un- 
 constitutional had not been determined; it was an 
 open question about which different views were held ; 
 the existence of the right in any part of the ma- 
 chinery of the dual form of government, and its 
 location in the event it did exist, were alike unsettled. 
 Though the authors of the Federalist had maintained 
 the existence of such a power and had ascribed it 
 to the Supreme Court,^ yet the Constitution itself 
 said not a word on the subject, and it took the won- 
 derful cogency of Marshall's logic in the famous case 
 of Marbury v. Madison in 1803, to present in an 
 irrefutable manner this function as indispensably 
 lodged in the Supreme Court, and, by inference, in 
 the other courts.^ If such were not the case, then 
 all the labor of constitution-makers in State and 
 nation to raise the instrument of government above 
 the plane of ordinary laws had been in vain; all 
 their efforts to give an added permanence and stabil- 
 ity to the fundamental law were futile; the asser- 
 tion contained in the Constitution itself that it was 
 the supreme law of the land was utterly false, and 
 
 1 Cf. Appendix for the Resolutions. 
 
 2 Cf. Federalist, Nos. 44 and 78. 
 
 ' U. S. Supreme Court Reports, '! Cranch 137. 
 
-t 
 
 114 Story of the Constitution 
 
 the new experiment in government made by the United 
 States was doomed to failure. 
 
 It was the third of the Virginia Resolutions that 
 the Nullifiers seized upon more than thirty years 
 later, and that caused Madison many weary hours of 
 explanation in seeking to free Jefferson and himself 
 from the charge of being the authors of the new 
 doctrine.^ After declaring that the powers of the 
 Federal Government were the result of a compact 
 to which the States were parties, that these powers 
 were no further valid than they are authorized by 
 the grants enumerated in that compact, this resolu- 
 tion closed with the assertion 
 
 That, in case of a deliberate, palpable, and dangerous 
 j exercise of other powers not granted by the said compact, 
 ; the States, who are the parties thereto, have the right 
 . and are in duty bound, to interpose for arresting the 
 j progress of the evil, and for maintaining within their 
 j respective limits the authorities, rights, and liberties 
 L appertaining to them. 
 
 At first glance it seems not unreasonable to credit 
 Madison and the Virginia Resolutions of 1798 with 
 propounding a doctrine which approaches perilously 
 near Nullification. Madison's explanation, given in 
 1829, of what was meant by this third resolution of 
 1798, may be regarded as his final conception of the 
 nature of the Union, and is best understood in con- 
 nection with his general views upon the question of 
 government. That civil society, or the state, was the 
 result of contract among the individual members was 
 
 1 Cf. Letters and other Writings of James Madison, vol. iv., 
 p. 229. 
 
James Madison 115 
 
 an idea common to Madison as to all the political ^ 
 philosophers of the age; from the days when he was 
 writing for the Federalist to the time of his latest 
 utterance he regarded the social compact as the basis 
 of all political and social life. By it the consent of 
 all was replaced by the consent of the majority and 
 from it came all power in a free government. The 
 Constitution of the United States he held to be of 
 a double character; it is at one and the same time 
 both the original social compact, that admittedly lay 
 at the basis of all civil society, and the compact by 
 which the people in the social state agreed to a 
 government over them.^ This latter compact it is 
 which is between the individuals as embodied in the 
 States, hence no State can release itself at will from 
 the compact. " The real parties to the constitutional 
 compact of the United States," said Madison, " are 
 the States — that is, the people thereof respectively 
 in their sovereign character, and they alone." ^ Madi- 
 son differed radically from the NuUifiers and, later, 
 the Secessionists: he denied that the parties to the 
 compact are the States in their organized capacity, 
 or that the Union is a league or the Constitution is 
 a treaty. " States have no more right to break away 
 than have cities within a State." The Constitution i 
 " is a compact among the States in their highest / 
 sovereign capacity, and constituting the people / 
 thereof one people for certain purposes, it cannot/ 
 be altered or annulled at the will of the States indi-| 
 vidually." Madison is careful to point out that in 
 the "Virginia Resolutions the plural " States " is usod 
 
 1 Letters, etc., iv., 63. 
 ^Ibid., iv., 18. 
 
1 16 Story of the Constitution 
 
 and to deny to the individual " State " the right to 
 nullify a law of the Federal Government. " Vir- 
 ginia," he declared, " asserted that the States, as 
 parties to the constitutional compact, had a right 
 and were bound, in extreme cases only, and after a 
 failure of all efforts for redress under the forms 
 of the Constitution, to interpose in their sovereign 
 capacity for the purpose of arresting the evil of 
 usurpation and preserving the Constitution and the 
 Union," while " the doctrine of the present day in 
 South Carolina asserts, that in a case of not greater 
 magnitude than the degree of inequality in the opera- 
 tion of a tariff in favor of manufactures, she may of 
 herself finally decide, by virtue of her sovereignty, 
 that the Constitution has been violated; and that if 
 not yielded to by the Federal Government, though 
 supported by all the other States, she may rightfully 
 resist it and withdraw herself from the Union." ^ 
 
 According to the doctrine of 1798, ours is a " con- 
 stitutional union " ; " the error," said Madison, in 
 writing to Edward Livingston in 1830, " in the com- 
 ments on the Virginia proceedings has arisen from 
 a failure to distinguish between what is declaratory 
 of opinion and what is ifso facto executory ; between 
 the right of the parties to the Constitution and of a 
 single party; and between resorts within the purview 
 of the Constitution and the idtima ratio which ap- 
 peals from a Constitution, cancelled by its abuses, 
 to original rights paramount to all constitutions." ^ 
 
 In short, the Virginia Resolutions, as interpreted 
 by Madison in 1830, recognized the right of revolu- 
 
 1 Letters, etc., iv., 44. 
 ^Ibid., iv., 80. 
 
James Madison 117 
 
 tion, which the NuUifiers were attempting to erect I ^^ 
 into a constitutional right. As he said in his famous 
 letter to Edward Everett, in the same year: 
 
 In the event of a failure of every constitutional re- 
 sort, and an accumulation of usurpations and abuses 
 rendering passive obedience and non-resistance a greater 
 evil than resistance and revolution, there can remain 
 but one resort, the last of all, an appeal from the can- 
 celled obligations of the constitutional compact to origi- 
 nal rights and the law of self-preservation. This is the 
 " ultima ratio " under all governments, whether consoli- 
 dated, confederated, or a compound of both; and it can- 
 not be doubted that a single member of the Union in the 
 extremity supposed, but in that only, would have a right, 
 as an extra and ultra constitutional right, to make the 
 appeal.^ 
 
 The Federal Union, then, was no mere league, no 
 " rope of sand " to be broken by any State at its 
 pleasure, but a strong national government which 
 rested upon the consent of the sovereign people of 
 the States, and which " operated directly on indi- 
 viduals, not on States." 
 
 Madison was undoubtedly sincere when he asserted 
 again and again that there was no inconsistency be- 
 tween his views in 1798 and in 1830, but the interpre- 
 tation placed by him in the latter year upon the 
 Virginia Resolutions was certainly not the interpre- 
 tation placed upon them in the former year by the 
 vast majority of his fellow countrymen. 
 
 When Jefferson was inaugurated President in 1801, 
 
 1 Letters, etc., iv., 101. 
 
ii8 Story of the Constitution 
 
 he appointed Madison his Secretary of State. The 
 second phase of the latter's career, that of an Ex- 
 ecutive, now begins. Hitherto his political activity 
 had been confined to the making of laws and of con- 
 stitutions; for the next sixteen years he filled in 
 succession the two highest executive offices in the 
 land. Madison was by natural instinct and training 
 a student and few men of his time equalled him in 
 his knowledge of the history of governments. With 
 his study there was soon mingled, as we have seen, 
 a practical experience in the problems of government 
 which ran the gamut from lowest to highest, from 
 member of a Committee of Safety through the Con- 
 gress of the Confederation, the Constitutional Con- 
 ventions of the United States and of Virginia, the 
 Assembly of his State and the House of Representa- 
 tives to the Secretaryship of State and the Presi- 
 dency for two terms. Such an active participation 
 in the affairs of practical politics kept him from fol- 
 lowing the visionary ideals of a student's chamber. 
 Lacking in imagination, he was lacking also in fire 
 and brilliancy; there was no spark of genius as in 
 Hamilton, no homely wit as in Franklin. Instead 
 there was careful consideration that approached hesi- 
 tancy; solidity that escaped being heavy only by 
 virtue of the lucidity and learning that accompanied 
 it. In addition there was a reasonableness and an 
 evenness of mind that fitted him most admirably for 
 the great part he played in the Constitutional Con- 
 vention. With too much of calm deliberation and 
 too little of the element of quick determination, he 
 failed of being a successful Executive. The temper 
 of his mind was best suited to the consideration of 
 
James Madison 119 
 
 the principles of government as they were to be read 
 in history and interpreted by experience. 
 
 Jefferson and a large majority of the party re- 
 garded Madison as the logical successor to the Presi- 
 dency in 1809 and as the perpetuator of democratic 
 principles. Jefferson's administration had given 
 more than one severe wrench to the principles pro- 
 claimed in 1800 and Madison succeeded to a greatly 
 modified form of democratic principles. Jefferson 
 had found it utterly impossible to undo the construc- 
 tive work of Hamilton; reductions in the army and 
 navy, in government expenses and taxes, left the 
 powers of the Federal Government undiminished; 
 possession of power by the Democratic-Republicans 
 was a far different thing from its exercise by the 
 Federalists who, they thought, were sure to use it 
 for the people's harm. 
 
 Early in Jefferson's first administration, the pro- 
 cess of absorbing the principles and practice of the 
 Federalists had begun. The two events that con- 
 tributed most to drive the Jeffersonian Democrats 
 into acting upon the principles of their rivals were 
 the purchase of Louisiana and the second war with 
 England. Madison, as Secretary of State, assisted in 
 the negotiations that culminated in the piu-chase and 
 he shared Jefferson's conscientious scruples regarding 
 the constitutionality of the acquisition; even more 
 did he doubt the legality of that clause of the treaty 
 providing for the reception of the inhabitants of the 
 ceded territory as citizens, or, in other words, he 
 doubted the advisability of making the Constitution 
 follow the flag by treaty arrangements. That the 
 Constitution does not follow the flag merely as the 
 
1 20 Story of the Constitution 
 
 result of the acquisition of territory, whether by 
 treaty or by conquest, has come to be the settled 
 doctrine of the Supreme Court. 
 
 The War of 1812 was forced upon Madison by the 
 new spirit that found entrance into Congress in 1811, 
 and the charge was made that he agreed to war as 
 the price of a second term.^ Certain it is that a 
 policy of war meant turning his back upon principles 
 that had been regarded as fundamental; it meant an 
 increase of the army and navy, of taxation and pub- 
 lic debt; it meant vigorous action on the part of 
 the central government and an exercise of authority 
 by it that a decade before would have been regarded 
 as fatal to liberty. 
 
 Had it not been that the war was a party war, 
 carried on in the face of an opposition from the rem- 
 nant of the Federalist party that came dangerously 
 near disunion, its nationalizing effect might have 
 been vastly greater. It nevertheless succeeded in 
 gathering together and crystallizing into a strong 
 sense of patriotism and national sentiment, the varied 
 elements begotten by national growth and expansion 
 and by the brilliant victories of a national navy. 
 American pride had been enlisted on the side of the 
 national government. However discreditable in its 
 origin and conduct, the war firmly established the 
 government of the United States both at home and 
 abroad. For the first time there was a conscious 
 recognition of its permanency and its supremacy. 
 Around it had gathered the sentiment of a growing 
 national feeling. Madison's part in this development 
 was negative rather than positive; the war was not 
 
 1 Gay, op. cit., p. 296-297. 
 
James Madison 121 
 
 of his seeking, but was forced on him by the young 
 generation that had come out of the West, whose 
 spirit was embodied in Henry Clay. " We ask for 
 energy," they said, " and we are told of his modera- 
 tion; we ask for talent, and the reply is his un- 
 assuming merit." Whether he realized it or not, 
 whether he desired it or not, Madison upon his 
 retirement from the presidency left behind him a 
 nation, for the first time conscious of its nationality 
 and just beginning to pride itself on its greatness 
 and its unlimited possibilities. After the war it 
 would have been ridiculous for any State to put 
 forward pretensions of comparing in dignity, honor, 
 or respect, to say nothing of power, with the Federal 
 Union. The Union was well launched upon the sea 
 of nationality, upon which it has since sailed, with 
 many a blow and now and again a storm, but always 
 with increasing power and always attended by in- 
 creasing respect and admiration from the great body 
 of the people. 
 
 After his retirement from the Presidency in 1817, 
 Madison spent the remaining years of his life at 
 his home, Montpelier, second only to the " Sage of 
 Monticello " in the people's eyes. He engaged in a 
 voluminous correspondence with his friends in which 
 he gave fresh expression to his views upon many of 
 the disputed questions regarding the character and 
 power of the Federal Government. He still believed 
 the government was compounded of federal and na- 
 tional elements; the Constitution, though a compact, 
 was not one to which the State governments were 
 parties, nor the State governments on the one hand 
 and the Federal Government on the other ; " the 
 
122 Story of the Constitution 
 
 parties are the States, i. e., tlie people thereof respec- 
 tively in their sovereign character and they alone." 
 The Supreme Court was still regarded as the rightful 
 arbiter in controversies between the Federal and the 
 State governments regarding their powers ; " if it 
 concur in usurpations, remonstrances, instruction, 
 recurring elections, impeachment, and amendment 
 are the remedies open to the people, and should all 
 these prove of no avail, there is the final right of 
 revolution and rebellion." 
 
 His long career in the public service, the important 
 part he had taken in the Constitutional Convention, 
 his age and his learning and the esteem in which 
 he was held contributed to lend importance to his 
 views. Two things tended to minimize their in- 
 fluence: in the South, new and special interests were 
 rapidly forcing men into constructions of the Con- 
 stitution which were far narrower than the limits 
 of the " strict construction " of the Democratic- 
 Republicans; in the North the spirit of nationality 
 was far outrunning " Madisonian Federalism." There 
 was no middle ground that could be held success- 
 fully between the conflicting tendencies, and Madi- 
 son's views were regarded by both parties as 
 temporizing and they satisfied neither. 
 
 The members of the Constitutional Convention 
 were far from unanimous in their opinions regarding 
 their own work, and some points they had purposely 
 left unsettled because of the impossibility of agree- 
 ment regarding them. They had taken a middle 
 ground through Hfany compromises, but the forces 
 of national development could not be restrained by 
 " parchment barriers." The elements of national 
 
James Madison 123 
 
 discord could be hushed for a time, but they could 
 not be reconciled by any nice adjustment of phrases, 
 and sooner or later they were destined to break forth 
 into warring factions which were the fiercer for their 
 long restraint. 
 
 Madison, however, was dimly aware of a change 
 that was taking place in men's thought, though he 
 stood too near it to be able to perceive it with clear- 
 ness. What we now recognize as a fundamental 
 change in the philosophic basis of thought was to 
 him but a new use of language.^ The doctrines of 
 Nullification and Secession are to him " errors which 
 have their source in the silent innovations of time on 
 the meaning of words and phrases." His attitude is 
 nowhere more clearly shown than in his view of 
 sovereignty. In the debates of the Constitutional 
 Convention, in the pages of the Federalist, and in 
 his letters and writings down to his death, Madison 
 proclaims the doctrine of a divided sovereignty.^ 
 Sovereignty is identified with supreme power and 
 this power is divided between the States in their 
 united and in their individual capacities. It was 
 inconceivable how a confederated republic could be 
 established if sovereignty could not be divided. In 
 1830, five years before his death, he gives utterance 
 to a protest against a new idea that was just begin- 
 ning to make its appearance under the auspices of 
 no less distinguished a name than that of Calhoun, 
 then at the height of his power. This new idea pro- 
 
 1 See a very illuminating article The Social Compact and 
 the Constitution, by A. C. McLaughlin in the American His- 
 torical Review, April, 1900. 
 
 2 Cf. Letters, etc., iv., 390, Sovereignty. 
 
124 Story of the Constitution 
 
 claimed the indivisibility of sovereignty, an idea that 
 Madison felt was subversive of the whole system of 
 government. " If sovereignty cannot be thus di- 
 vided," he declared, " the political system of the 
 United States is a chimera, mocking the vain pre- 
 tensions of human wisdom." ^ We have come to 
 believe that Calhoun was right in his view that 
 sovereignty cannot be divided, but it took the strife 
 of battle through four long years to determine that 
 , though Calhoun was right in declaring that sov- 
 "7^ I ereignty was indivisible, he was wrong in attempting 
 to locate that undivided sovereignty in the individual 
 States and not in the Federal State. 
 
 ^Letters, etc., iv., 61. 
 
VI 
 
 John Marshall. Growth through 
 Legal Interpretation 
 
 laS 
 
JOHN MARSHALL 
 
 1755. Sept. 24. Bom in Fauquier Co., Va. 
 
 1775. At outbreak of Revolution joined Virginia 
 
 troops. 
 1777. May. Promoted to Captaincy. 
 
 1779. Aug. 19. Returned to Virginia to take charge of militia. 
 
 Heard law lectures at William and Mary Col- 
 lege. 
 
 1780. Admitted to Bar at Williamsburg. 
 Delegate to House of Burgesses. 
 Returned to his company. 
 
 1781. Resigned and took up practice in Fauquier Co. 
 Removed to Richmond. 
 
 1782-88. Delegate to House of Burgesses. 
 
 1788-91. Delegate to House of Burgesses. 
 
 1788. Member of Virginia Constitutional Convention. 
 
 Declined position of Attorney-General under 
 Washington. 
 1791-97. Lawyer at Richmond. 
 
 1797. Marshall, Pinckney, and Gerry appointed spe- 
 
 cial envoys to France. 
 
 1798. Returned to New York. 
 1799-1800. Representative in Congress. 
 1800. Secretary of State. 
 
 1801-1835. Chief Justice of the Supreme Court. 
 
 1807. Tried Burr. 
 
 1835. July 6. Died at Philadelphia. 
 
 126 
 
VI 
 
 John Marshall. Growth through Legal 
 Interpretation 
 
 THE success of the Democratic-Republican party 
 and the election of Jefferson to the Presidency 
 in 1800 did not result in depriving the Federalists of 
 all influence and control over national affairs. Though 
 the wave of triumphant democracy had swept away 
 the Federalist majority in both Houses of Congress 
 and had seated the guiding spirit of the movement in 
 the chair of the Chief Executive, it fell back baffled 
 before the Supreme Court. 
 
 The theory of the makers of the Constitution that 
 a separation of the powers of government was es- 
 sential to liberty, that it was necessary to balance 
 part against part, and to oppose power to power, as 
 a check upon the natural tendency of all govern- 
 ments to strengthen themselves at the expense of the 
 people, now brought unconcealed chagrin to that very 
 party which was loudest in its outcries against the 
 dangers of centralization. Though the Legislative 
 and Executive branches of the government were con- 
 trolled by the Democratic-Eepublicans, the Judiciary 
 remained under Federalist prepossessions. The Su- 
 
 127 
 
12 8 Story of the Constitution 
 
 preme Court under the leadership of the greatest 
 of its Chief Justices, John Marshall of Virginia, was 
 just entering upon its career as interpreter of the 
 Constitution. Despite the angry protests of the 
 Democratic-Republicans, it continued the develop- 
 ment of the national theory of the Union which had 
 been so successfully begun during the twelve years 
 of Federalist supremacy. 
 
 The active, planning will of the Federal Govern- 
 ment was dominated by that party which stood for 
 lessening the powers of the central government and 
 maintaining the sacredness of local self-government 
 as the safest guarantee of liberty. The Supreme 
 Court, representing " judgment," not " will," as the 
 authors of the Federalist had declared, was pervaded 
 with the spirit of the party that desired a strong 
 central government — and judgment triumphed over 
 will. 
 
 In the Constitutional Convention much distrust of 
 democracy had been evidenced by the " Fathers " and 
 many ingenious devices had been contrived to stay 
 the hot temper of the masses; the more deliberate 
 Senate was to check the hasty action of a House too 
 close to popular passions to be altogether trusted, 
 and a President's veto afforded still further guaran- 
 tee of deliberate legislative action. Moreover, every 
 check and balance of one part of the governmental 
 machinery against another furnished a possible op- 
 portunity for the minority to prevent or delay the 
 action of the majority, and of one party to balk its 
 rival of complete control of the government for years 
 after the tide of popular favor had swept that rival 
 into the elective offices. The whole question of 
 
John Marshall 129 
 
 parties and consequently the possibility of a dead- 
 lock between them, seems to have been but dimly 
 perceived by the framers of the Constitution. 
 
 For more than thirty-four years Marshall served 
 as Chief Justice and under his fostering care the 
 interpretation of the Constitution in a national sense 
 went on apace. It would, however, be as absurd 
 to ascribe this development solely to the action of 
 the Court as not to recognize the fact, that, without 
 its action, the development would have been impos- 
 sible. Other and important influences were at work 
 in the same direction; the Democratic-Republican 
 party found itself unable to overthrow the construc- 
 tive measures of the Federalists and was obliged to 
 accept in practice, though it rejected in theory, the 
 principles of their opponents. As a result of this 
 process of absorption, both parties came to recognize 
 the supremacy of the Constitution and the function 
 of the Supreme Court as its interpreter, to acquiesce 
 in the view that a nation had been created by the 
 Constitution and to take pride in its glory and 
 greatness. 
 
 The period of the blind worship of the Constitu- 
 tion as the chief cause of national greatness begins 
 and the struggle of parties over " loose " and " strict " 
 construction proves insufficient to preserve their 
 separate existence. The War of 1812 had been the 
 principal cause of uniting all men under the banner 
 of nationality. For the first time the spirit of the 
 nation triumphed over that of the States; the old 
 view of the Union as a mere league of States was 
 pushed into the background, until another genera- 
 tion, under the strong pressure of economic suffer- 
 
13° Story of the Constitution 
 
 ing, should summon Nullification to its defence. 
 Even then only South Carolina felt the burden to 
 be intolerable; another generation of cotton, slavery, 
 and the tariff was required to mould the South- 
 ern States into a " solid South," to draw them to- 
 gether into a common purpose and movement; when 
 this took place Nullification had given way to its 
 more logical, as well as more destructive, successor, 
 Secession. 
 
 No name could be more typical of the great con- 
 stitutional development of this period than that of 
 John Marshall, the " expounder of the Constitution." 
 Marshall was born in Fauquier County, Virginia, on 
 September 24, 1755 ^ ; he received his early educa- 
 tion under a private tutor and at the outbreak of 
 the Kevolution had begun the study of the law. His 
 heart was always with the patriot cause and he at 
 once joined the Virginia troops, was soon promoted 
 to a captaincy and took part in the battles of 
 Monmouth, Brandywine, and Germantown, and in 
 the storming of Stony Point. In 1779 he returned to 
 Virginia to take charge of the militia, and occupied 
 his leisure by hearing the law lectures then being de- 
 livered at William and Mary College by the dis- 
 tinguished jurist, George Wythe, and in 1780 was 
 admitted to the bar at Williamsburg. Believing that 
 he was again needed in the army, he returned alone 
 and on foot to his company, but resigned the follow- 
 ing year after the surrender of Cornwallis, and began 
 
 1 Cf. A. B. Magruder, John Marshall, in American Statesmen 
 Series; H. Flanders, Life and Times of John Marshall, in Life 
 and Times of the Chief Justices of the United States, vol. ii., 
 pp. 279-550, and G. Van Santvoord, Lives of the Chief Jus- 
 tices, vol. iv., pp. 293-456. 
 
John Marshall 131 
 
 the practice of law in Fauquier County and then at 
 Richmond, where his success was immediate and 
 distinguished. 
 
 Marshall, like most young Virginia lawyers, en- 
 tered politics and in 1780 was elected a delegate to 
 the House of Burgesses, in which he continued to 
 serve almost uninterruptedly for ten years. In 1788 
 he was a member of the Virginia Constitutional Con- 
 vention and lent his active support in favor of the 
 adoption of the Federal Constitution. It is a little 
 surprising that Marshall was not a member of that 
 distinguished body of delegates from Virginia to the 
 Convention at Philadelphia ; certainly both his talents 
 and his reputation would have justified his selection, 
 for he declined the post of Attorney General in Wash- 
 ington's Cabinet to devote himself to the practice of 
 his profession. Marshall's next public service was 
 in 1797, when, with Pinckney and Gerry, he was sent 
 as a special envoy to France on the mission that 
 gave rise to the famous X Y Z letters. Upon his 
 return to New York he was tendered a public ban- 
 quet by Congress and in the following year he was 
 elected a member of the House of Representatives. 
 President Adams appointed him Secretary of State 
 in 1800 and Chief Justice of the Supreme Court in 
 the following January. This position Marshall 
 filled with distinguished honor till his death on July 
 6, 1835, at Philadelphia. 
 
 As notable and as varied as were his public serv- 
 ices, Marshall's greatest service to his country was 
 rendered as a judge, and it is upon his interpreta- 
 tion of the Constitution as the supreme law of the 
 land, and upon his decisions of the large questions 
 
132 Story of the Constitution 
 
 that arose out of the complex relations of the States 
 and the nation, that his fame must rest. To ap- 
 preciate fully Marshall's influence upon the develop- 
 ment of the Constitution, we must remember that he 
 dominated the Court during the years of his Chief 
 Justiceship, that the vast majority of the opinions 
 upon constitutional questions were rendered with his 
 sanction and support, and that most of the important 
 opinions were written by him.^ Only one question 
 of importance to the interpretation of the Constitu- 
 tion had been decided previous to his becoming a 
 member of the Court. This was the case of Chis- 
 holm V. Georgia, in which Justice Wilson had ex- 
 pressed his opinion so emphatically that the Union 
 was a nation, sovereign for the purposes for which 
 it had been created, and, within its sphere, indepen- 
 dent of the States.^ 
 
 The first task of Marshall and the Court was to 
 demonstrate what has been called the " efficiency " 
 of the Constitution.^ The Constitution had nowhere 
 expressly conferred upon the courts the power to 
 declare a law unconstitutional, and at the February 
 term in the year 1800, Mr. Justice Chase had said, in 
 the case of Cooper v. Telfair : 
 
 Although it is alleged that all acts of the legislature, 
 in direct opposition to the prohibitions of the Constitu- 
 
 1 Constitutional History as Seen in American Law, article by 
 Hitchcock, Constitutional Development in the United States as 
 Influenced by Chief Justice Marshall, p. 57. This is an ex- 
 cellent work to which I am much indebted. 
 
 22 Dallas, 419. 
 
 3 Hitchcock, op. cit., p. 76. 
 
John Marshall 133 
 
 tion, would be void, yet it still remains a question, where 
 
 the power resides, to declare it void. 
 
 I 
 
 1 / 
 
 Such a declaration is all the more important in 
 view of the Virginia and Kentucky Resolutions of 
 1798-99, which declared that the power resided in 
 the States, the parties to the compact, in case " of a 
 deliberate, palpable, and dangerous exercise of other 
 powers not granted by the said compact." 
 
 It seems self-evident to us that this power should 
 reside in the courts, that it should be their duty to 
 declare void any law repugnant to the Constitution, 
 and, in doing so, to judge of the extent of the powers 
 delegated to the Federal Government; but in the 
 face of the cry that this would make the discretion 
 of the court and not the Constitution the measure 
 of those powers, neither the court nor the country 
 had taken the position that the Supreme Court must 
 be the final arbiter in the event of a conflict between 
 the States and the nation over the extent of the 
 delegated powers. This position, however, Marshall 
 assumed in the case of Marbury v. Madison in 1803.^ 
 
 Madison, as Secretary of State under Jefferson, 
 refused to issue to one William Marbury his com- 
 mission as a Justice of the Peace for the District 
 of Columbia, although the facts showed that Marbury 
 had been nominated to the Senate by President 
 Adams, that the nomination had been confirmed by 
 the Senate, and that the commission had been signed 
 and sealed, but not delivered to Marbury, before the 
 administration of Adams closed. 
 
 14 Dallas, 19. 
 2 1 Cranch, 137, 
 
134 Story of the Constitution 
 
 Marshall delivered the opinion of the Court in this 
 important case. After determining that the appoint- 
 ment was complete with the signing and sealing of 
 the commission, and that in consequence Marbury 
 had a right to the office and a remedy for his ex- 
 clusion, he took up the question of the right of the 
 Court to grant the remedy prayed for. The Con- 
 stitution confers upon the Supreme Court original 
 jurisdiction " in all cases affecting ambassadors, 
 other public ministers and consuls, and those in 
 which a State shall be a party." ^ In all other cases 
 to which the judicial power of the United States ex- 
 tends, the Supreme Court shall have appellate juris- 
 diction. Under the terms of the Judiciary Act, the 
 power had been conferred upon the Court of issuing 
 a mandamus, the remedy sought by Marbury, in cases 
 other than those involving appellate jurisdiction. 
 Such an exercise of original jurisdiction had not been 
 conferred by the Constitution and the question of the 
 supremacy of the Constitution when in conflict with 
 an ordinary law was squarely presented ; the " ef- 
 ficiency " of the Constitution was to be tested. 
 
 Marshall's opinion is so clear and convincing, goes 
 so directly to the heart of the whole matter, and 
 sets forth so correctly the true and essential nature 
 of a written and " rigid " Constitution that it ought 
 to be familiar to all. The people, said Marshall, 
 have an original right to determine such principles 
 for their government as in their opinion shall most 
 conduce to their own happiness; that the principles 
 thus established are fundamental and designed to be 
 permanent; that the original and supreme will of 
 
 1 Art. iii., Sec. 2. 
 
John Marshall 135 
 
 the people organizes the government, distributes and 
 limits the powers as it sees fit, and commits the limi- 
 tations to writing. The government of the United 
 States is of this character. 
 
 To what purpose are powers limited, and to what pur- 
 pose is that limitation committed to writing, if those 
 limits may, at any time, be passed by those intended to 
 be restrained ? . . . The Constitution is either a superior 
 paramount law, unchangeable by ordinary means, or it 
 is on a level with ordinary legislative Acts, and, like any 
 other Acts, is alterable when the legislature shall please 
 to alter it. If the former part of the alternative be true, 
 then a legislative Act contrary to the Constitution is not 
 law; if the latter part be true, then written constitutions 
 are absurd attempts, on the part of the people, to limit 
 a power in its own nature illimitable. ... It is emphati- 
 cally the province and duty of the judicial department 
 to say what the law is. Those who apply the rule to 
 particular cases must of necessity expound and interpret 
 the rule. If two laws conflict with each other, the courts 
 must decide on the operation of each. . . . This is of the 
 very essence of judicial duty. If, then, the courts are 
 to regard the Constitution, and the Constitution is su- 
 perior to any ordinary Act of the legislature, the Con- 
 stitution, and not such ordinary Act, must govern the 
 case to which they both apply. 
 
 Thus the " efficiency " of the Constitution was 
 demonstrated. The power of the Court to uphold 
 the supremacy of the Constitution and to restrain 
 Congress within the limits set by that instrument 
 was established. The importance of the decision can 
 not be overestimated, for it in reality determined the 
 nature both of the Constitution and of the Union; 
 
136 Story of the Constitution 
 
 it confirmed the doctrine of the limitation of the 
 powers of the Federal Government and the peculiar 
 function of the Supreme Court to maintain the limi- 
 tations set by the Constitution; it determined where 
 the power lay to declare a law in conflict with the 
 Constitution void. While it denied to the Federal 
 Government the right to extend its powers at will, 
 it nevertheless assumed for it the right, through one 
 of its branches, to judge of the extent of the powers 
 conferred upon it by the Constitution. The Federal 
 Government was one of limited powers, but of the 
 limits of those limits it itself was to judge. 
 
 The decision shows, moreover, very clearly that it 
 was not Marshall's desire to exalt the Court above 
 the other departments; he states as explicitly as 
 could be desired the true function of the Court; it 
 cannot out of the fulness of its power, sit in judg- 
 ment on the acts of Congress and declare such acts 
 unconstitutional, but it must wait till the individual 
 case is brought before it; its decision, then, shall be 
 rendered irrespective of the law in violation of the 
 Constitution. Nor has it any intention " to inter- 
 meddle with the prerogatives of the Executive " or 
 to consider questions which involve Executive dis- 
 cretion. " There exists and can exist," says Marshall 
 in this same decision, " no power to control that 
 discretion. The subjects are political. They respect 
 the nation, not individual rights; and being intrusted 
 to the Executive, the decision of the Executive is 
 conclusive." Political policies have never been made 
 the subject of judicial decision by the Court, and in 
 this recognition of the limits to its own sphere, it 
 assured itself of the almost unquestioned support of 
 
John Marshall 137 
 
 the nation in that ever widening field of true judicial 
 interpretation that lay before it. Following close 
 upon the establishment of the " efficiency " of the 
 Constitution, came a second problem of importance, 
 that of the " extent " of the judicial power.^ " The 
 nation, the Constitution, and the laws were in their 
 infancy,'' 2 and the great question was whether the 
 system would work. The solution of this ques- 
 tion depended in large measure upon the success of 
 the Judiciary in assuming a position of equality to 
 the Executive and Congress within the limits of the 
 delegated powers, and in establishing itself above all 
 State courts. 
 
 How the former was attained has been shown in 
 the case of Marbury v. Madison. The contest be- 
 tween the Federal and the State Judiciary was keen 
 and prolonged, with frequent touches of bitterness 
 and violence. For a decade Marshall was at war 
 with the Supreme Court of his native State, and the 
 most violent opponent of his efforts to secure the 
 supremacy of the Federal Supreme Court was Judge 
 Eoane of the Supreme Court of Virginia.* Roane 
 was dangerous because he was the mouthpiece of the 
 Democratic-Republicans of that State. Marshall be- 
 lieved that " the whole attack, if not originating with 
 Mr. Jefferson," was " obviously approved and guided 
 by him." The conflict with the Virginia court extended 
 from 1813 to 1821 and may be traced in three of Mar- 
 
 1 Hitchcock, op. dt, p. 82. 
 
 ^Ibid., op. cit., p. 56. Quotation from Chief Justice 
 Waite. 
 
 ^American Historical Review, July, 1907: Chief Justice Mar- 
 shall avd Virginia, by William E. Dodd. 
 
138 Story of the Constitution 
 
 shall's decisions, — Martin v. Hunter's Lessee (1813)/ 
 McCulloch V. Maryland (1819),^ and Cohens v. Vir- 
 ginia (1821).^ Its heat was due to differences of 
 opinion with respect not only to the legal but also 
 to the political questions involved, and Virginia Re- 
 publicans did not hesitate to proclaim Marshall a 
 traitor to his State. 
 
 In the first case an appeal was taken from a de- 
 cision of the Virginia court to the United States 
 Supreme Court on the ground that rights granted 
 by the treaty of 1783 had been denied, and the de- 
 cision of . the Virginia court was reversed. Judge 
 Roane and his associates formally announced that 
 the decision of the United States Court would not 
 be obeyed. Public opinion in Virginia fully sus- 
 tained the local court, while the opinion of Judge 
 Roane was a political manifesto in favor of State 
 sovereignty. The Supreme Court at once took 
 notice of the refusal of the Virginia court; the case 
 was gone over again, the points of the former opin- 
 ion were reaffirmed, and the United States marshal 
 was ordered to execute the decision of the Supreme 
 Court. 
 
 The contest of ideas and the rivalry of men was, 
 however, far from finished with the settlement of 
 this case. In 1819 the conflict was renewed in the 
 case of McCulloch v. Maryland ; once again Marshall 
 and Roane were antagonists. In this case the doc- 
 trine of the " implied powers " of the Constitution 
 was accepted by the Court, its right to determine the 
 
 1 1 Wheaton, 304. 
 24 Wheaton, 316. 
 8 6 Wheaton, 264. 
 
John Marshall 139 
 
 constitutionality of laws, already affirmed in the case 
 of Marbury v. Madison, was reasserted, and the right 
 of Congress to establish a National Bank was 
 settled. To Roane the exercise of such power by 
 the Court was a usurpation. In a series of papers 
 contributed to the Richmond Enquirer, he put for- 
 ward the view of the Virginia and Kentucky Reso- 
 lutions and declared, that, if Marshall's view pre- 
 vailed, the " rights and freedom of the people of the 
 States " were lost and that a resort to force might 
 be found necessary. 
 
 The attention of the public was soon directed else- 
 where by the high-handed proceedings of General 
 Jackson in Florida, and upon this picturesque figure 
 the fire of the Virginia malcontents was directed, to 
 the relief of the Supreme Court. 
 
 The third and final conflict between Marshall and 
 the State court came in the case of Cohens v. Vir- 
 ginia. Of the opinion it has been said that no other 
 decision " afiEords a more splendid example of Mar- 
 shall's intellectual power, his profound political in- 
 sight, or his unalterable devotion to the Union." ^ 
 The questions presented to the Court, said Marshall, 
 in rendering the decision, 
 
 maintain that the nation does not possess a depart- 
 ment capable of restraining peaceably, and by au- 
 thority of law, any attempts which may be made, by a 
 part, against the legitimate powers of the whole; and 
 that the government is reduced to the alternative of 
 submitting to such attempts, or of resisting them by 
 force. They maintain that the Constitution of the United 
 States has provided no tribunal for the final construc- 
 
 1 Hitchcock, op. cit., p. 90. 
 
I40 Story of the Constitution 
 
 tion of itself, or of the laws or treaties of the nation; 
 but that this power may be exercised in the last resort by 
 the courts of every State in the Union. That the Constitu- 
 tion, laws, and treaties may receive as many construc- 
 tions as there are States ; and that this is not a mischief, 
 or, if a mischief, is irremedial. 
 
 Again, after quoting that part of the Constitution 
 which declares that 
 
 this Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties 
 made or which shall be made under the authority of the 
 United States, shall be the supreme law of the land, and 
 the judges in every State shall be bound thereby, any- 
 thing in the Constitution or laws of any State to the 
 contrary notwithstanding,^ 
 
 the Chief Justice continued in words of solemn and 
 convincing import: 
 
 This is the authoritative language of the American 
 people ; and, if gentlemen please, of the American States. 
 It marks, with lines too strong to be mistaken, the char- 
 acteristic distinction between the government of the 
 Union and those of the States. The general government, 
 though limited as to its objects, is supreme with respect 
 to those objects. This principle is a part of the Consti- 
 tution ; and if there be any who deny its necessity, none 
 can deny its authority. 
 
 • •••••••• 
 
 The people made the Constitution, and the people can 
 unmake it. It is the creature of their will, and lives only 
 by their will. But this supreme and irresistible power 
 to make or to unmake resides only in the whole body of 
 
 ^ Art. vi. 
 
John Marshall 141 
 
 the people ; not in any subdivision of them. The attempt 
 of any of the parts to exercise it is usurpation, and ought 
 to 6e repelled iy those to whom the people have delegated 
 their power of repelUng it. 
 
 Having demonstrated the " efficiency " and the " ex- 
 tent " of the judicial power, having established the 
 right of the Court to disregard a law repugnant to 
 the Constitution, having maintained its supremacy 
 in all matters arising out of the Constitution, and 
 having shown its power to uphold the Federal au- 
 thority, the Court had yet another important question 
 to settle under the leadership of Marshall. Though 
 the Constitution enumerated, it did not define the 
 powers which it granted and the process of definition, 
 as Marshall said, " is perpetually arising, and will 
 Tjrobably continue to arise as long as our system 
 shall exist." ^ 
 
 The enumeration of the delegated powers closes 
 with the statement that Congress shall have power 
 " to make all laws which shall be necessary and 
 proper for carrying into execution the foregoing 
 powers, and all other powers vested by this Consti- 
 tution in the Government of the United States, or in 
 any department or officer thereof." ^ In the case of 
 the United States v. Fisher,* in 1804, Marshall had 
 laid down the fundamental principle of interpreta- 
 tion when he said : 
 
 In construing this clause it would be incorrect, and 
 would produce endless difficulties, if the opinion should 
 
 ''■ McCulloch V. Maryland, 4 Wheaton, 405. 
 
 2 Art. i., Sec. 8. 
 
 3 2 Cranch, 358. 
 
142 Story of the Constitution 
 
 be maintained that no law was authorized which was 
 not indispensably necessary to give effect to a specific 
 power. . . . Congress must possess the choice of means, 
 and must be empowered to use any means which are in 
 fact conducive to the exercise of a power granted by 
 the Constitution. 
 
 Following the line of argument developed by 
 Hamilton in his memorial on the constitutionality 
 of a National Bank, Marshall gave the stamp of 
 judicial approval to the principle of " implied 
 powers " as contained in this so-called " elastic 
 clause " of the Constitution. 
 
 The same question, as we have seen, was presented 
 to the Court in 1819 in the case of McCulloch v. 
 Maryland. The earlier opinion was reaffirmed in 
 still more emphatic language. " Let the end be 
 legitimate," said Marshall, " let it be within the 
 scope of the Constitution, and all means which are 
 appropriate, which are plainly adapted to that end, 
 which are not prohibited, but consist with the letter 
 and spirit of the Constitution, are constitutional." ^ 
 
 " That the States have no power, by taxation or 
 otherwise, to impede, burden, or in any manner con- 
 trol any means or measures adopted by the govern- 
 ment for the execution of its powers," * was 
 established in this as well as in subsequent cases. 
 The Court declared " that the power to tax involves 
 the power to destroy; that the power to destroy may 
 defeat and render useless the power to create." * 
 " The question is, in truth, a question of supremacy ; 
 
 1 4 Wheaton, 421. 
 
 2 Hitchcock, op. cit., p. 94. 
 
 ^McCulloch V. Maryland, 4 Wheaton, 316, 431. 
 
John Marshall 143 
 
 and if the right of the States to tax the means em- 
 ployed by the general government be conceded, the 
 declaration that the Constitution, and the laws made 
 in pursuance thereof, shall be the supreme law of 
 the land, is an empty and unmeaning declaration." ^ 
 
 Among the powers delegated to Congress was that 
 " to regulate commerce with foreign nations and 
 among the several States, and with the Indian 
 tribes." ^ Out of this clause have grown all the at- 
 tempts, recently so numerous, by legislation and 
 judicial decision, to regulate and control " inter- 
 state commerce." Most of the fundamental prin- 
 ciples which have governed the action of Congress 
 and the courts were laid down by Marshall. We 
 can only indicate some of the more important. In 
 Gibbons v. Ogden ^ it was determined that commerce 
 was not merely traffic but was commercial inter- 
 course of all kinds; that it included navigation, that 
 the power vested in Congress was complete and 
 exclusive, and that the exercise of this power must 
 extend within the territorial jurisdiction of the 
 States, and " must include every case of commercial 
 intercourse which is not a part of the purely in- 
 ternal commerce of a single State." These principles 
 have found application and enlargement in a host 
 of cases from that day to this, all carrying out the 
 fundamental ideas of Marshall. 
 
 Turning to the express limitations put upon the 
 power of the States by the Constitution, we find 
 some of Marshall's most important decisions, par- 
 
 ^ McCulloch V. Maryland, 433. 
 
 2 Const., Art. i., Sec. 8. 
 
 3 9 Wheaton, 189. 
 
144 Story of the Constitution 
 
 ticularly those involving the sanctity of contract. 
 Most notable among these stands the Dartmouth 
 College case, in which the old and the young cham- 
 pion of national strength and unity won added fame. 
 Marshall, the judge, and Webster, the advocate, never 
 showed to finer advantage their faith in the Consti- 
 tution and the Union than in this case. 
 
 Finally it remains to notice a decision which has 
 been of the utmost consequence in the history of our 
 growth as a nation and which has found fresh appli- 
 cation in the past ten years as a result of our policy 
 of imperialism. Jefferson, it is well known, believed 
 that in the acquisition of Louisiana he " had done an 
 act beyond the Constitution," and he went so far as 
 to draft an amendment to the Constitution which 
 provided for the incorporation of the new territory 
 in the United States. The general approval with 
 which the purchase was received rendered the amend- 
 ment unnecessary, and Congress appropriated the 
 money necessary to complete the transaction and 
 passed all laws required to carry the treaty into 
 execution. Twenty-five years later, in the case of the 
 American Insurance Co. -;;. Canter,^ in which the 
 validity and the effect of the treaty providing for 
 the purchase of Florida in 1819 were called in ques- 
 tion, Marshall concluded the matter so far as judi- 
 cial determination was concerned in the following 
 words : " The Constitution confers absolutely on 
 the government of the Union the powers of making 
 war and of making treaties; consequently that gov- 
 ernment possesses the power of acquiring territory, 
 either by conquest or by treaty." 
 
 11 Peters, 511. 
 
John Marshall 145 
 
 In accordance with this principle we have seen 
 our power stretch far beyond our shores and take 
 possession of insular territories; it has made it pos- 
 sible for the United States to enter upon its career 
 of expansion and in consequence to take its place as 
 one of the great powers of the world. 
 
 When Marshall ascended the bench as Chief Jus- 
 tice of the United States, the first wave of reaction 
 had set in against the concentration of power in the 
 Federal Government. Strength and power had been 
 the requisites scarce a dozen years before to deliver 
 the country from anarchy, but now they seemed, 
 to the reactionary spirit, destined to be the means 
 of subverting liberty and establishing monarchy and 
 tyranny, and under the party cry of liberty and self- 
 government the Democratic-Republicans had tri- 
 umphed. When Marshall laid down the ermine along 
 with his life, the country was just beginning to wit- 
 ness the second reaction against too great power in 
 the central government. South Carolina and Nulli- 
 fication were the logical successors of the Virginia 
 and Kentucky Resolutions; Calhoun and the Fort 
 Hill address, of Roane and the Richmond Enquirer. 
 
 The Federalist principles had beyond question per- 
 sisted in the interpretation of the Constitution at 
 the hands of the Court and even in the political 
 branches they found a quiet acceptance in practice. 
 Had not the baleful infiuence of slavery cast its 
 shadow over the land and produced a " peculiar in- 
 stitution," demanding support from every possible 
 source, even from the Constitution itself, it is highly 
 probable that the great work of Marshall, in estab- 
 lishing the national principles and doctrines of the 
 
146 Story of the Constitution 
 
 Constitution, would have sufficed to determine for 
 all time the nature of the Union. Never would it 
 have been necessary to draw the sword in final 
 arbitrament. 
 
VII 
 
 Andrew Jackson. Growth through 
 Democratization 
 
 147 
 
ANDREW JACKSON 
 
 1767. Mar. 15. Born near boundary line between North and 
 
 South Carolina. 
 1784-88. Studied law in Salisbury, N. C. 
 
 1788. Licensed to practise law. 
 
 1791. District Attorney for the Mero District. 
 
 1796. Delegate to State Constitutional Convention. 
 First Representative in Congress from Ten- 
 nessee. 
 
 1797. Elected to U. S. Senate. 
 
 1798-1804. Judge of Supreme Court of Tennessee. 
 
 1801. Major-General of State Militia. 
 
 1813-14. War with Creek Indians. 
 
 1814. May 31. Appointed Major-General in U. S. Army. 
 
 1815. Jan. 8. Battle of New Orleans. 
 
 1817. Dec. 17. Took personal command of U. S. troops. 
 
 1819. Feb. 8. Congress sustains his action in Florida. 
 1822. U. S. Senator from Tennessee. 
 
 1824. Candidate for President. 
 
 1825. Resigned from Senate. 
 1828. Elected President. 
 
 1832. July. Vetoed Bill rechartering National Bank. 
 
 Nov. Re-elected President. 
 
 Dec. Nullification Proclamation. 
 
 1837. Retired from public life. 
 
 1845. June 8. Died at the Hermitage, 
 
 148 
 
VII 
 
 Andrew Jackson. Growth through 
 Democratization 
 
 THE success of democracy in the election of Jeffer- 
 son in 1800 was only partial. It meant merely 
 that the country repudiated the extremes to which 
 the Federalists were driving the national develop- 
 ment. A desire to preserve the complete indepen- 
 dence of local self-government, which the Democratic- 
 Republicans professed to believe was imperilled by 
 the strengthening of the central government, united 
 with the carefully cultivated sentiment that the 
 Federalists were monarchists, or at least aristocrats, 
 and that they feared and distrusted the people, gave 
 to the movement organized by Jefferson the sem- 
 blance of democracy. To the extent that it professed 
 a belief in the wisdom of the multitude and a respect 
 for local self-government as the bulwark of liberty, 
 it was more democratic than its opponent; but it 
 would be a great mistake to imagine that its profes- 
 sions were such as to-day would be regarded as con- 
 sistent with thorough-going democracy. Jefferson's 
 belief in the people had back of it always the sup- 
 position that the people would be wise enough to 
 suffer themselves to be led by men like himself, — ■ 
 men thoroughly imbued with the ideals of democracy, 
 and fitted by their training to carry them out far 
 
 149 
 
15° Story of the Constitution 
 
 better than the people could do it for themselves. 
 There was still present the belief in the superiority 
 of the Virginia Dynasty as the people's leaders. 
 
 The democracy of Jefferson, moreover, was far 
 removed from that modern tenet of the faith which 
 demands the suffrage as the inalienable right of man. 
 At that period property and educational qualifica- 
 tions, not inconsiderable in extent, were required 
 almost universally both for office-holders and voters. 
 The democracy was in reality based on property, and 
 the limited body thus enfranchised was expected to 
 yield itself to the wisdom of approved leaders.^ 
 
 The Jeffersonian revolution was after all very 
 limited in its radicalism. Yet the Federalists dreaded 
 its weakening effect on the centralizing tendencies 
 of the Federal Government. Their apprehension on 
 this score was exceeded by their fear of the rule of 
 the masses, of the fickleness and passion of " de- 
 mocracies," and of those characteristics which litera- 
 ture had made classic through reference to the Greek 
 city-states and the Italian republics as models. 
 
 None of their fears was realized. The funda- 
 mental principles of the government were continued 
 unchanged by the Democratic-Eepublicans, the essen- 
 tial character of the Union was unassailed; only its 
 tone and complexion were altered; a dull gray re- 
 placed the black; expenditures civil, military, and 
 naval were cut down, but Louisiana was purchased. 
 Nor did passionate and hasty democracy sweep away 
 all the barriers and overleap all the hindrances 
 erected in the Constitution against the immediate 
 triumph of the popular will; there was only a half- 
 
 1 H. J. Ford, Rise and Growth of American Politics, p. 132 ff. 
 
Andrew Jackson 151 
 
 hearted attack upon the Judiciary as the bulwark 
 of a defeated party against the complete supremacy 
 of its rival. There was less ceremony and more of 
 simplicity, a change which was greatly facilitated 
 by the transfer of tlie seat of government from the 
 most fashionable city of the Republic to the dreary 
 wastes of the newly laid-out city of Washington. Yet 
 on the whole things moved on much as they had done 
 before; men of the same general type and of the 
 same general social position continued in control. 
 The real aristocracy of education and training re- 
 mained as before the leaders of thought and action. 
 Democracy had triumphed, but in theory rather than 
 in practice ; and another generation must arise under 
 other conditions before the " People " should come 
 into their own. 
 
 These new conditions were many, but none of them 
 contributed so much to the development of new ideas 
 in respect to the government as did the settling of 
 the country beyond the Alleghanies; and of these 
 new conditions and new theories respecting govern- 
 ment, Andrew Jackson was the unconscious embodi- 
 ment. Born in 1767, so near the border line between 
 North and South Carolina that his most exhaustive 
 biographer and Jackson himself are at variance as 
 to which State shall have the honor of his birth- 
 place, he was early made to feel the hardships of 
 the War for Independence, which in the end caused 
 the death of his mother and his two brothers, in- 
 flicted upon him, child though he was, wounds and 
 imprisonment, and engendered in his heart a fierce 
 hatred of the British which sought and won its 
 revenge at New Orleans. 
 
IS 2 Story of the Constitution 
 
 His father, a Scotch-Irishman from Carrickfergus, 
 County Antrim, Ireland, who had come over in 1765, 
 had died a few days before Jackson's birth, so that 
 the close of the Eevolution found him an orphan, 
 dependent upon his mother's relations. His train- 
 ing was that of the frontier settlement and his 
 education of the most meagre sort.^ The stories of 
 his early years give little promise of the future ; they 
 show a dashing, dare-devil spirit, with little of serious 
 purpose and less of serious effort, living the wild, 
 free life of an outpost of civilization where sus- 
 tenance was easy and refinement impossible. In 
 1784 he began the study of law at Salisbury, N. C, 
 but even then life did not become too serious. He 
 was the gayest and most careless of all the young 
 blades, fond of horse-racing and cock-fighting and 
 spending no small part of the four years at Salisbury 
 in these pursuits. 
 
 Admitted to the bar in 1788, he was in 1791 ap- 
 pointed District Attorney for the Mero district, com- 
 prising the settled portions of North Carolina that 
 lay beyond the mountains. The eastern part of this 
 district had just been through the anarchy of the 
 abortive efforts to establish the " State of Franklin," 
 and the western portion, reaching as far as Nash- 
 ville, was suffering from almost daily attacks by 
 the lurking savages. Many settlers everywhere 
 along the Western boundary of civilization, as 
 it slowly pushed its way toward the Pacific, 
 
 ^ Lives by Parton, Sumner, Buell, and Colyar. Also see 
 C. H. Peck, The Jacksonian Epoch; W. MacDonald, The Jack- 
 sonian Democracy, and C. E. Merriam, American Political 
 Theories. 
 
Andrew Jackson 153 
 
 degenerated into a condition not far removed from 
 that of the savage. The restraints of civilization 
 became unbearable and, like the deer and the Indians, 
 they kept just ahead of the advancing line of settle- 
 ment.^ In such a community Andrew Jackson be- 
 gan his career as an officer of the State ; he performed 
 his duties fearlessly, if not always with wisdom, and 
 in 1796 he was elected the first Representative from 
 the new State of Tennessee. A year later he was 
 appointed Senator to succeed Blount who had been 
 expelled. His career as a Senator was of short 
 duration, for he resigned his seat in 1798 and in 
 the same year was made " Judge of the Superior 
 Courts " of Tennessee. 
 
 A man less suited for the position in an older 
 civilization can scarcely be imagined. Yet there 
 were no serious complaints against his decisions. 
 Force of will and violence of temper commanded 
 respect in a society where the restrictions of law 
 weighed lightly, where the security of life and prop- 
 erty were less dependent on law than on individual 
 effort, and where the code of honor found imitation 
 and reproduction in a travesty of the original. 
 
 Jackson ended his services on the bench in 1804. 
 By this time he had firmly established himself in the 
 raw community as a man who could and would do 
 things, without fear either of individuals or of so- 
 ciety; he had fought his duels, raced his horses, and 
 matched his game-cocks ; he had married a lady with- 
 out observing proper care in determining whether 
 she had been legally divorced, and had thereby laid 
 up for himself a wealth of slander and heart-burn- 
 
 1 Sumner (ed. of 1899) , p. 6 ff. 
 
154 Story of the Constitution 
 
 ing for the future; he was thoroughly representative 
 of the crude life of the times in that section, both 
 in his social and political ideals and relations. He 
 had been charmed by Burr, the fallen idol of de- 
 mocracy, and had been enlisted in assisting his 
 preparations till suspicion of their treasonable intent 
 was aroused; at tlie time of tlie trial, to which he 
 had been summoned as a witness, he delivered a 
 public harangue in defence of Burr and in derogation 
 of General Wilkinson. This course of conduct meant 
 that he was deeply alive to the importance of the 
 Mississippi, as was all the Southwest, and as deeply 
 in sympathy with all efforts to unite Louisiana more 
 closely to the Union, and that the name of democracy 
 was sweet to his ears. But to him democracy meant 
 something very different from what it meant to men 
 of the Democratic-Kepublican school of the more 
 populous States along the coast. The free life of 
 the Southwest afforded no suitable atmosphere in 
 which to hedge democracy about with checks and 
 chains. Eather did it afford almost perfect condi- 
 tions for the development of ideas of complete local 
 self-government and equality with respect to the 
 participators in it. Small and infrequent was the as- 
 sistance rendered any political community by a larger 
 and superior community ; the smaller desired nothing 
 from the larger, and independence of external con- 
 trol was regarded as a matter of course and of right. 
 In a society dependent upon itself for the food it 
 eats, the clothes it wears, and the implements and 
 utensils which its civilization demands, there was 
 small chance for the development of sharply marked 
 classes, or for social and political distinctions. The 
 
Andrew Jackson 1 55 
 
 right to vote was regarded as inherent in every free 
 white man, and the ability to fill a political office 
 as commensurate with the right to vote. In a self- 
 reliant and self-assertive social life, where complex 
 political problems were unknown, and where the ad- 
 ministration of a rude system of justice and taxation 
 constituted the bulk of political activity, it was nat- 
 ural that any ordinary man should be regarded as 
 fit for the position, and that such positions should 
 rotate from one member of the community to another, 
 that as many as possible might enjoy the social dis- 
 tinction and emoluments. Rotation in office, short 
 terms, equality in ability to fill the offices, and uni- 
 versal suffrage were the commonplaces of political 
 thought in the Tennessee of Jackson's earlier life, 
 and he himself the embodiment of these principles.^ 
 
 It is important to gather some impression of the 
 general conditions under which Jackson grew up, 
 and to perceive what were the forces at work upon 
 him and the Western country, for his place in our 
 constitutional development is due to the infiuence 
 he exerted upon the spirit of the government, and 
 to the principles of administration that he introduced 
 into it. He placed upon it the distinctive character 
 of his own thought and feelings. Not a word of the 
 Constitution did he change, and but one new idea 
 of constitutional law did he advance, and yet his 
 administrations mark a turning-point in the develop- 
 ment of our institutions. He infused into them the 
 spirit and practices of real democracy, the ideals of 
 equality, of the supremacy of the people, and of rota- 
 tion in office, and finally he introduced into the 
 
 1 Merriam, op. cit., p. 176 ff. 
 
iS6 Story of the Constitution 
 
 national administration the most vicious of our po- 
 litical evils, the " spoils system." ^ Not less pro- 
 nounced was the lofty position of supremacy over 
 the other departments of government to which he 
 raised the Executive, but this elevation was personal 
 and transitory and was due to the indomitable will 
 of the " old Hero," not to any lasting forces. 
 
 Ketiring from the bench in 1804 Jackson became 
 a merchant and farmer and bade fair to spend the 
 remainder of his life as an inconspicuous member of 
 society. Chance saved him, for having been elected 
 Major-General of the State Militia in 1801, the Creek 
 war gave the first opportunity for the display of 
 those military talents which carried him steadily 
 forward to the battle of New Orleans and eventually 
 to the Presidency. Jackson's military career in- 
 terests us only in so far as it brought into display 
 the perseverance and iron will of the man. His own 
 sickness and the wretched support given by the gov- 
 ernment could not baffle or discourage him; in the 
 face of almost insuperable difficulties he held his 
 steady course toward the goal; his imperious nature 
 refused to acknowledge defeat either at the hands of 
 nature or of superior numbers. His qualities of 
 leadership won the unfaltering allegiance of his 
 soldiers, and the victory over Pakenham placed him 
 among the notable figures of the country. Made a 
 Major-General in the regular army, he undertook in 
 1818 the war against the Seminoles and, disregardful 
 of international amenities, he invaded Spanish terri- 
 tory and hung British subjects. 
 
 1 Cf. MacDonald, op. cit., p. 56 ff, and Sumner, op. cit., p. 
 187 ff. 
 
Andrew Jackson 157 
 
 From 1819 his political reputation grew apace 
 through the skilful management of that master wire- 
 puller, William B. Lewis, and his availability as a 
 presidential candidate to succeed Monroe was care- 
 fully cultivated. The " Era of Good Feeling " under 
 Monroe had produced a partyless condition of fac- 
 tional fights among the leaders. Clay, Crawford, 
 Calhoun, Jackson, and John Quincy Adams divided 
 the hosts among them.^ Calhoun succeeded in com- 
 bining the opposing forces upon himself for Vice- 
 President, and of the others, Jackson, as the candidate 
 of the People, received the largest number of elec- 
 toral votes, but not a majority of all. The election 
 was therefore thrown into the House of Eepresen- 
 tatives, where Clay's overwhelming influence was 
 turned to Adams and the cry of " bargain and corrup- 
 tion " arose, to pursue Clay with deadly effect for 
 the remainder of his life.^ Jackson had at first 
 protested against his name being presented as a can- 
 didate on the ground of his age, but having been 
 defeated by unfair means, as it seemed to him, al- 
 though he had the largest electoral and popular vote, 
 his whole being was fired with a desire to be re- 
 venged upon his enemies, and the " Jackson men " 
 became a party seeking to right a wrong that had 
 been done him and the people. 
 
 At the same time parties were beginning to re- 
 shape themselves out of the personal factions, and 
 the Jackson men, claiming to be the lawful heirs and 
 successors of the true Jeflfersonian principles, ap- 
 propriated the name of Democrats. Jackson's nomi- 
 
 1 Cf. Sumner, op. cit., p. 92 ff. 
 
 - Cf. Schurz, Life of Henry Clay, i., 254 ff. 
 
158 Story of the Constitution 
 
 nation and election in 1828 were marked by a variety 
 uf innovations in political life. In the first place, the 
 Congressional Caucus as a nominating agency passed 
 out of existence with the nomination of Crawford in 
 1824. It had already fallen into disrepute as an 
 undemocratic institution which deprived the people 
 of their free choice of a Chief Magistrate. Jackson's 
 first nomination was made by the legislatures of his 
 own and of other States, and by popular assemblies 
 everywhere. His second nomination was so well as- 
 sured as to be unnecessary, but his opponents, who 
 had by this time become consolidated under the 
 leadership of Clay, held a national nominating con- 
 vention which has grown into the highly developed 
 modern organization for that purpose.^ 
 
 The election of Jackson brought far reaching 
 changes in the whole atmosphere of government, the 
 effects of which we still feel. It was hailed as the 
 triumph of the People; at last they had come into 
 their own, and the smallest remnants of opposition 
 to the reign of the popular sovereign were to be swept 
 away forthwith. Jackson regarded himself as pecul- 
 iarly the representative of the people and their wishes, 
 and the idea grew upon him with the successive 
 years of his Presidency. Through him the people 
 had spoken in unmistakable fashion and therefore 
 his wishes must prevail. Before him in this repre- 
 sentative capacity the other branches of government 
 must give way. The Executive, to his mind, in- 
 corporated the highest expression of the will of the 
 people and that will must be obeyed. It was a con- 
 
 ^ Cf. Ostrogorski, Democracy and the Organization of Political 
 Parties, ii., 1-207. 
 
Andrew Jackson 1 59 
 
 ception that fitted in well with the domineering 
 temper and quality of his own mind. 
 
 ■ The democratic simplicity of the traditional Jeffer- 
 son, riding alone to the Capitol and hitching his 
 horse outside while he went in to take the oath of 
 office, is parodied in the gaping multitudes who 
 crowded into the city and into the White House with 
 the bold air of ownersliip when Jackson came into 
 power. Through four years the " people " had been 
 cajoled into believing themselves the victims of an 
 infamous plot of their enemies to keep them out of 
 that control of the government which was their due. 
 The necessary counterpart of such teaching was the 
 prospect that, with Jackson's election, everything 
 would be turned over into their hands, and in a 
 vague sort of way the ignorant multitude fore- 
 shadowed to itself some direct pecuniary benefit from 
 the success that had been won. Filled with such 
 ideas, the common people poured into Washington 
 to see and touch and handle that which had come 
 into their possession.^ Their numbers were swelled 
 by the great crowd of hungry office-seekers who, from 
 every quarter of the country but chiefiy from the 
 South and West, came clamoring for the rewards 
 that had been dangled before their eyes during the 
 campaign. The more refined elements of society 
 looked on aghast and affrighted at the mob in 
 homespun, with a hot-tempered, passionate, and at 
 times lawless military hero as their leader, and 
 feared for the safety of property and republican 
 government. 
 The political ideals of the newly settled West had 
 
 1 Cf. MacDonald, op. cit., p. 43 ff. 
 
i6o Story of the Constitution 
 
 triumphed over the more conservative elements of 
 the East. Democracy in practice as well as in prin- 
 ciple was seeking realization, and in Jackson it had 
 found the man fitted above all others to effect the 
 desired result. He was of humble birth and circum- 
 stances; he had risen by his own strength and owed 
 his success to no fortuitous circumstances. Brave, 
 determined, self-willed, passionate in hatred and in 
 friendship, making every difference of view assume 
 the attitude of personal opposition, neglectful of law 
 if it stood in the way of his desires, he was yet 
 honest, sincere, and fervently patriotic, and furnished 
 the great unthinking masses a hero whom they could 
 worship, not as they had worshipped " the Sage of 
 Monticello," afar off for his wisdom, but as " the old 
 Hero " of the Hermitage, for his honesty. The peo- 
 ple trusted him and, backed by their trust and re- 
 liance, he worked the third revolution in our history. 
 Jackson, no less than Jefferson, was brought into 
 office on an anti-Hamilton platform, though it was 
 not so called. The Federalists as a party had dis- 
 appeared and more than twenty years before, J. Q. 
 Adams had joined the Democratic-Republicans, but 
 the anti-Jackson men, the men whom Clay led, and 
 the Adams administration stood for the same gen- 
 eral principles and policies that had characterized 
 Hamilton. 
 
 Jackson's fiercest fight was against the Bank of 
 the United States; not the original bank whose 
 legality Hamilton had so warmly defended and 
 Jefferson as warmly attacked, but another on the 
 same plan that the Democratic-Republicans had been 
 forced to charter in 1816. Jackson's second admini- 
 
Andrew Jackson i6i 
 
 stration became on the surface almost a fight between 
 the classes, a fight between the rich and the poor. 
 Certain it is that the body of the people was made 
 to feel that it was a death struggle with the money- 
 power which had not yet acquired the title of Wall 
 Street ; that unless " Nick " Biddle and his infamous 
 institution were destroyed, the national life would 
 be corrupted beyond hope and republican government 
 would disappear, a prey to plutocracy. Against this 
 dreadful calamity it was every plain man's duty to 
 take his stand behind the banner of General Jackson.^ 
 
 That facts are stranger than fiction is perhaps more 
 often illustrated in politics than elsewhere. Jack- 
 son, heralded and fought for as the saviour of the 
 country, proclaimed as the one man capable of con- 
 tending successfully with the corruption in the gov- 
 ernment, and himself convinced of his mission, did 
 more to degrade and corrupt and pollute our political 
 life than any man before or since. Honest beyond 
 all question, he made possible the greatest dishonesty 
 and incompetency. Such an unlooked-for and un- 
 happy result followed hard upon the practice of re- 
 warding party services with public places. Jackson 
 was not the inventor of the spoils system; it had 
 already been tried with success in the States and he 
 merely introduced it into our national life. Much 
 as Jackson's own personality tended to strengthen 
 the Executive, the patronage much more increased his 
 power but only as a member of a party; it decreased 
 his eflciency and destroyed his disinterested position. 
 The President could no longer pretend to follow the 
 example of Washington and be the impartial Presi- 
 
 ^ Cf. Sumner, op. dt., chaps, viii., x., and xi. 
 
1 62 Story of the Constitution 
 
 dent of the whole country. He became more and 
 more the head of a party. 
 
 The forces of democracy had been steadily gather- 
 ing strength since the close of the Eevolution and 
 we may congratulate ourselves that the way had been 
 prepared for their peaceful introduction. The in- 
 fluence of Jackson upon our national life was, how- 
 ever, far from being altogether bad. His ideals were 
 not less far removed from those of Jefferson than 
 they were from that extreme section of the Demo- 
 cratic party which was beginning to identify local 
 self-government with the protection of slavery. Jack- 
 son and Calhoun soon found themselves widely sepa- 
 rated on the question of the nature of the Union. 
 With Jackson, to be sure, the attempt of South 
 Carolina to nullify a law of the Federal Government 
 had the appearance very largely of an attempt to 
 defy his own authority, to thwart him personally. 
 His defence of the Union assumed to a measurable 
 degree the appearance of a defence of his position as 
 Chief Executive, and his toast " The Union, it must 
 be preserved ! " rang both with patriotism and per- 
 sonal feeling. His proclamation ^ of December 10, 
 1832, asserted a doctrine of national supremacy 
 which brought consternation to the Nulliflers, who 
 trusted to his Southern sympathies to incline him 
 in their favor.^ There was no doubt in his mind of 
 the right or of the power of the Federal Government 
 to maintain itself against the spirit of disunion, and 
 he challenged in sharpest terms the upholders of the 
 heresy of Nullification. The whole power- of the gov- 
 
 1 For the text of Jackson's Proclamation see the Appendix. 
 
 2 Cf. Sumner, op. cit., chaps, ix. and x. 
 
Andrew Jackson 163 
 
 ernment was to be put in motion to secure the en- 
 forcement of the laws, should resistance by force be 
 tried. 
 
 Difficult as it may be to speculate with accuracy 
 upon what might have been, it would seem in this 
 case safe to believe that had Jackson refused to en- 
 tertain the idea of a compromise, had he joined with 
 Webster in the belief that now was the time to test 
 the strength of the Federal Government,^ the terrible 
 conflict of the Civil War might possibly have been 
 averted. No other State stood ready to join South 
 Carolina in 1832 in a movement to withdraw from 
 the Union. The South had not yet been set apart 
 in thought and feeling from the rest of the country; 
 it had not yet been made to feel its own homogeneity 
 and the need of concerted action in defence of its 
 peculiar labor. Had the precedent been set in 1832 
 of vigorous action against all efforts to dissolve the 
 Union, there would have been no excuse for the feeble 
 admission of 1860 that, though there was no right 
 of Secession, the Federal Government was never- 
 theless lacking in all constitutional means to main- 
 tain its own existence against the unlawful attempt 
 of a State to withdraw.^ Had force been used against 
 South Carolina in 1832, there is little likelihood that 
 it would have been necessary against eleven States 
 in 1861. Yet it must ever remain to Jackson's credit 
 that he sounded the true note of national supremacy 
 and gave support to a growing sentiment that from 
 1861 to 1865 became supreme. 
 
 iC/. Lodge's Daniel Webster, p. 222. 
 
 2 Cf. President Buchanan's message of December, 1860, Mes- 
 sages and Papers of the Presidents, v., 635 ff. 
 
1 64 Story of the Constitution 
 
 Eeference has already been made to Jackson's at- 
 titude toward the other branches of the government. 
 He considered himself in a very special sense the 
 direct representative of the people's wishes, and 
 , the courts, no less than Congress, were made to feel 
 v' the force of Executive independence. John Marshall 
 still presided over the Supreme Court during most of 
 the years of Jackson's administrations ; he typified the 
 extremest form of the anti-democratic tendencies and 
 was therefore highly objectionable to Jackson. But 
 aside from personal antipathy and political creed, 
 Jackson could not brook any interference with the 
 triumphant progress of democracy as embodied in 
 himself and his position. He claimed, therefore, an 
 equal right with the Supreme Court to judge of the 
 constitutionality of laws. Had he not sworn to sup- 
 port the Constitution, and was it not his duty to sup- 
 port it as he understood it? That the President has 
 a right to pass an opinion upon the constitutionality 
 of a bill presented for his signature is unquestioned, 
 but when a law has been definitely settled through 
 years of practice and repeated decisions, it is no 
 longer within the province of the Chief Executive 
 to pass judgment. Jackson, then, must be con- 
 demned for his violent assumption of the unconsti- 
 tutionality of the Bank, and his attacks upon the 
 institution from this standpoint were unwarranted. 
 Still more is his attitude toward the Court in the 
 case of the Cherokee Nation v. the State of Georgia 
 to be condemned.^ The chief value of the Court lies 
 in the fact that, as Hamilton said, it is will, not 
 force. This is at once its strength and its weakness, 
 »C/. J. W. Burgess, The Middle Period, p. 220 ff. 
 
Andrew Jackson 165 
 
 and unless the Executive power of the government 
 be used unreservedly in its support, it must in- 
 evitably fall into disrepute and lose its independence. 
 No more destructive principle could have found ex- 
 pression on Jackson's lips than that contained in his 
 famous remark with reference to this case : " John 
 Marshall has made his decision ; now let him enforce 
 it." ^ To carry out such a policy consistently would 
 utterly overthrow the system of checks and balances 
 so carefully devised by the separation of the powers 
 of government and reduce the courts to a position 
 of subserviency to the Executive. Fortunately it is 
 a principle which has not found imitation among 
 Jackson's successors. 
 
 With Jackson's retirement from the Presidency, the 
 balance that had been disturbed by his personal char- 
 acter was restored and the Executive power sank back 
 into its normal position. The forces of democracy, 
 however, had come to stay and, while the rawness of 
 methods and of individuals gradually disappeared, 
 the principles of political equality as manifested in 
 the suffrage and the civil service continued in un- 
 diminished strength. 
 
 ^ Horace Greeley, The American Conflict, L, 106. 
 
VIII 
 
 Daniel Webster. Growth through 
 Rising National Sentiment 
 
 167 
 
DANIEL WEBSTER 
 
 1782. Jan. 
 
 18, 
 
 Born in Salisbury, N. H. 
 
 1797-1801. 
 
 
 At Dartmouth College. Taught school i 
 Maine. 
 
 1805. 
 
 
 Admitted to Bar. 
 
 1812. 
 
 
 Opposed War of 1812. 
 
 1813. 
 
 
 Representative in 13th Congress. 
 
 1814. 
 
 
 Re-elected to Congress. 
 
 1816. 
 
 
 Moved to Boston. 
 
 1818. 
 
 
 Dartmouth College Case. 
 
 1820. 
 
 
 Member of State Convention. 
 
 1823-27. 
 
 
 Member of Congress. Opposed tariff of 1824, 
 
 1827. 
 
 
 Elected U. S. Senator. 
 
 1828. 
 
 
 Voted for " Tariff of Abominations." 
 
 1830. Jan. 
 
 20 and 26. Replies to Hayne. 
 
 1833. 
 
 
 Re-elected U. S. Senator. 
 
 Feb. 
 
 16. 
 
 Replied to Calhoun. 
 
 1839. 
 
 
 Re-elected to Senate. 
 
 1841. 
 
 
 Resigned from Senate. 
 Appointed Secretary of State. 
 
 1843. 
 
 
 Resigned. 
 
 1845. 
 
 
 Elected to Senate. 
 
 1850. 
 
 
 Secretary of State. 
 
 1852. Oct. 
 
 24. 
 
 Died at Marshfield, Mass. 
 
 i68 
 
VIII 
 
 Daniel Webster. Growth through Rising 
 National Sentiment 
 
 WEBSTEE was born in a small New Hampshire 
 village on January 18, 1782; he was, there- 
 fore, seven years old at the time of the adoption of 
 the Constitution. So intimately is his name asso- 
 ciated with this document that it is pleasing to think 
 that the whole of his responsible existence was spent 
 under it. He belonged to the first generation of ' / 
 Americans who knew no other form of government ^/ 
 than that established by the present Constitution. 
 He felt himself to be a citizen of the Union, not of 
 the America of the Revolution. It was a generation 
 that had not felt the evils of a loose Confederacy, ' 
 nor the full force of State pride and State patriotism ; 
 it could not recall the conflicting opinions and the 
 resultant compromises of the Philadelphia Conven- 
 tion. It knew that Union meant prosperity and it 
 found in the Constitution both the cause and the 
 justification of the Union. Webster's generation was 
 reared in that era when men, no matter how widely 
 they might differ in their views of the Constitution, 
 were a unit in their devotion and loyalty to the in- 
 
 i6g 
 
1 70 Story of the Constitution 
 
 strument itself. It was nourished on that almost 
 blind worship of the Constitution which followed so 
 quickly after its adoption by all the States. North 
 and South alike felt the force of the rising national 
 sentiment; South Carolina no less than Massa- 
 chusetts, offered homage at the shrine of the Con- 
 stitution. Federalist and Eepublican could unite in 
 a self-sufficing admiration of the new form of gov- 
 ernment, for after it was adopted, the fight was 
 thenceforth within the Constitution. 
 
 Such at least was the case in Webster's early years ; 
 not until he was well into middle life did South Caro- 
 lina proclaim Nullification, yet even then protesting 
 that such a measure was constitutional and consis- 
 tent with the retention of its place within the Union. 
 Death mercifully came to him nine years before 
 South Carolina led the way of Secession out of the 
 Union, to maintain which he had given freely and 
 fully of his wonderful gifts of intellect and oratory 
 his whole life long. 
 
 In estimating Webster's infiuence upon the devel- 
 opment of our Constitution, it may be helpful to 
 sketch briefly the course of a few of the most im- 
 portant events of the period embraced within the 
 span of his maturity, for, unlike the actual framers 
 of the Constitution, Webster was not so much maker, 
 as upholder; he interpreted it through the part he 
 played in the history of his times. He was the liv- 
 ing embodiment of the national spirit and he first 
 gave adequate expression to the " slow results of 
 time " ; he first voiced for the new generation the 
 new spirit that had come as a result of a multitude 
 of causes. 
 
Daniel Webster 171 
 
 When the Virginia and the Kentucky Resolutions 
 sent abroad their warning note of danger against 
 the Alien and Sedition Acts, and the reaction against 
 the overreaching nature of Federalist tendencies was 
 rising, to its full strength, Webster was in the midst 
 of his teens ^ ; the triumph of Jefferson came with 
 the completion of his college career, and the year of 
 his majority witnessed the Louisiana Purchase. The 
 first Embargo Act followed within two years after 
 his admission to the bar, and his opposition to the 
 War of 1812 secured his election to the Thirteenth 
 Congress; there he was at once placed upon the Com- 
 mittee of Foreign Affairs of which Calhoun, an eager 
 advocate of the war, was chairman. He was re- 
 elected to the Fourteenth Congress and still con- 
 tinued his opposition to the war ; in the same Congress 
 he declared himself opposed to the principle of 
 protection.^ 
 
 This opposition to a war which did more than any- 
 thing up to that time to strengthen the national sen- 
 timent and to elevate the Union above the States, and 
 to protection, whose zealous champion he afterwards 
 became, presents, in its contradictions, a very striking 
 parallel to the career of Calhoun. The course of 
 Calhoun, however, was just the reverse of that of 
 Webster. Elected a member of Congress for the first 
 time in 1811, Calhoun straightway assumed, along 
 with Clay, the leadership of that powerful group of 
 young men then entering public life, and forced on 
 peace-loving President Madison the war with Eng- 
 land. As late as 1816 Calhoun was an avowed ad- 
 
 1 For lives of Webster see Lodge, McMaster, and Hapgood. 
 
 2 Lodge, p. 55 ff. 
 
172 Story of the Constitution 
 
 vocate of protection and internal improvements, both 
 distinctly national doctrines in their effects. The 
 subsequent career of Calhoun as the greatest oppo- 
 nent of a strong central government and the leading 
 exponent of the rights of the individual States^ is no 
 more contradictory than that of Webster in filling 
 just as conspicuously the opposite role of advocate 
 of a strong central power and of opponent of State 
 Eights. 
 
 The Missouri Compromise was entered into while 
 Webster had temporarily withdrawn from national 
 politics because of his removal to Boston from his 
 native State. His re-entry into Congress, as a Rep- 
 resentative from Massachusetts, came in 1823 and in 
 the following year he opposed the " Tariff of 1824 " 
 in a remarkably brilliant speech. In 1827 Webster 
 entered the Senate, the scene of his worthiest labors 
 and his greatest triumphs. The change that was 
 coming over his views, a change that may be at- 
 tributed perhaps to the changed conditions of his 
 / life, was evidenced in his support of the " Tariff 
 ^ of Abominations " in 1828 ; from this time forth 
 Webster was a consistent supporter of the policy of 
 protection.^ 
 
 The years following his election to the Senate to 
 his death in 1852 were crowded with events of the 
 highest importance in which he played a principal 
 part. The election of Jackson to the Presidency, 
 with the final success of the democratic movement; 
 Ithe threat of Nullification in South Carolina, which 
 ' called f<?rth the memorable replies to Hayne and to 
 
 1 Lodge, op. dt., p. 154 if, and F. W. Taussig, The Tariff His- 
 tory of the United States. 
 
Daniel Webster 173 
 
 Calhoun; the question of the right of petition so 
 valiantly fought and won by J. Q. Adams; the first 
 mutterings of the slavery question that grew rapidly 
 into a demand, on the one side for extension, and on 
 the other for extinction ; the annexation of Texas ; the 
 questions regarding the power of Congress in the 
 Territories, and the admission of new States with 
 slavery or without, are sufficient to illustrate the 
 historical movements of the times and to give indi- 
 cation of the opportunities presented of influencing 
 the national development.^ 
 
 Time and space forbid a detailed study of Webster's 
 speeches on all these questions, richly as such study 
 repays the student, whether of oratory or of the 
 principles of our government. Neither can we pause 
 to trace the economic influences that were daily 
 marking oflE North and South more distinctly from 
 each other. Suffice it to say that slavery early dis- 
 appeared in the North, manufactures and free labor 
 flourished, while in the South, cotton and slavery 
 seemed linked in perpetual bonds to the exclusion of 
 practically all industries save agriculture. The 
 West, from its spirit of self-reliance as well as from 
 its economic conditions, found itself far more closely 
 united in sympathy and interest with the North than 
 with the South. 
 
 Webster grew up in the atmosphere of Federalist 
 principles, though the Federalist party went down 
 in lasting defeat before he was old enough to cast a 
 ballot. Though the party died, its principles lived. 
 They were incorporated in the very structure of the 
 
 iC/. T. H. Benton, Thirty Years' View, and J. W. Burgess, 
 The Middle Period. 
 
1 74 Story of the Constitution 
 
 government which the Democratic-Republicans dared 
 not tear down ; their victory in 1800 could only check, 
 not undo, what had already been done. The Federal- 
 ist principles, moreover, found constant application 
 and expansion at the hands of Marshall and the 
 Judiciary. Webster's first great argument on the 
 Constitution was made before the Supreme Court 
 with Marshall presiding. It was in the celebrated 
 Dartmouth College case in 1818 when Webster was 
 thirty-six years old. A graduate of Dartmouth, he 
 found peculiar pleasure in defending the chartered 
 rights of this institution of which he said, " It is 
 ... a small College. And yet there are those who 
 love it." 1 
 
 The point at issue was whether the charter of 
 the college was a contract; if so, then certain stat- 
 utes passed by the Legislature of New Hampshire, 
 modifying the charter, were null and void because 
 in violation of the Constitution which lays upon the 
 States a very positive limitation. The prohibition is 
 contained in the following words. " No State shall 
 . . . pass any bill of attainder, ex post facto law, or 
 law impairing the obligations of contracts." ^ 
 
 The court was thoroughly in sympathy with the 
 position taken by Webster. In the case of Fletcher 
 V. Peck,^ decided in 1810, the Court had held that the 
 term " contract " included both those agreements al- 
 ready executed and those still to be executed; that 
 " a grant or conveyance is an executed contract, the 
 obligation of which continues binding upon the 
 
 1 Quoted, Lodge, op. cit., p. 90. 
 
 2 Art. i.. Sec. 10. 
 
 3 6 Cranch, 87. 
 
Daniel Webster 175 
 
 grantor." These principles the Court now applied 
 in the Dartmouth College case to the charter of a pri- 
 vate corporation and the New Hampshire laws were 
 declared unconstitutional. Though often cited as the 
 case which established the inviolability of contracts 
 under the Constitution, in reality the question de- 
 cided was whether the charter was a contract for 
 the security and disposition of property, or a grant 
 of political power which might be recalled at the 
 pleasure of the State. In accepting the former view, 
 the Court strengthened its position as the supporter 
 of the nation against the States and increased the 
 reputation of Webster as a constitutional lawyer. 
 
 The great opportunity, however, for Webster to 
 stand forth as the exponent of the idea of national 
 unity came when the doctrine of Nullification was 
 proclaimed in South Carolina. Then it was that he 
 delivered his wonderful speeches in support of the! 
 Constitution as the basis of a perpetual Union, aS' 
 a real instrument of government by which a national 
 state had been created. Of his two most noted 
 speeches, the reply to Hayne was the first and was 
 delivered in 1830.^ Nominally on the Foote Reso- 
 lution in the Senate, which looked to the restriction 
 of the sale of public lands, it in reality dealt with 
 the paramount question of the nature of the Federal 
 Union. Senator Hayne of South Carolina had taken 
 advantage of the opportunity presented by the Foote 
 Resolution to give expression to the growing sepa- 
 ratist feeling in his State, a feeling which owed its 
 immediate origin to the Tariff of 1828 and which 
 
 1 In Writings and Speeches of Daniel Webster (National 
 Edition) , vi., 3 ff. 
 
1 76 Story of the Constitution 
 
 found its culmination in the Nullification Ordinance 
 of 1832.1 To Webster fell the task of replying in 
 behalf of that great body of the people who believed 
 in the necessity of Union for the preservation of 
 Liberty — a necessity to which he gave expression in 
 the closing words of his peroration, " Liberty and 
 Union, now and forever, one and inseparable." 
 
 The reply to Hayne was delivered almost without 
 preparation, yet the truth is that his whole life had 
 been, as he said, a constant preparation. Day by 
 day he had gathered together thoughts, impressions, 
 ideals of national unity, and on this occasion he 
 reached the zenith of his career as statesman and as 
 orator. Other speeches in behalf of the Constitution 
 followed, but none of them quite equalled this first 
 attempt to set forth the nature of the Union as it 
 had developed under the Constitution. 
 
 In a consideration of the questions raised in this 
 debate we must remember that they were not new; 
 they were as old as the Constitution itself, for they 
 found expression in the Convention which framed it 
 and in the State conventions which adopted it; they 
 arose in the Virginia and Kentucky Resolutions 
 which sought to interpret it, in the Hartford Con- 
 vention and in the decisions of the Supreme Court 
 in some of its most famous cases. They were now 
 presented in new form and as a result of new causes 
 and conditions; they were presented more concretely 
 and as a practical question which demanded settle- 
 ment. Not since the days of the Constitutional Con- 
 
 1 Cf. C. W. Loring, Nullification, Secession, Webster's Argu- 
 ment, and the Kentucky and Virginia Resolutions, and E. P. 
 Powell, Nullification and Secession in the United States. 
 
Daniel Webster 177 
 
 vention had the issue been brought to a test, and 
 even now the final trial was postponed as a result 
 of the efforts of the " Great Compromiser," Henry 
 Clay. For another generation South Carolina al- 
 lowed the doctrine of Nullification to sleep — to sleep 
 and wake, changed in form but not in substance. 
 Nullification transformed into Secession shows itself 
 in its true light of revolution in the Civil War. 
 
 The great problem to be solved was the nature of 
 the Federal Union; around it were gathered all the 
 other questions so hotly debated back and forth; 
 whether the Constitution was a compact, creating a 
 league of sovereign States, or a supreme law consti- 
 tuting a supreme government within the sphere of 
 the powers conferred upon it; whether the Consti- 
 tution was the creature of the States, or of their 
 governments, or of the people of the United States 
 as a whole, as the preamble declared; whether the 
 individual States, as sovereigns, were the final judges 
 of the powers conferred by the Constitution, or 
 whether that power was vested in the general gov- 
 ernment in the appropriate organ. These are the 
 questions upon whose solution such a wealth of argu- 
 ment was poured out, and which called forth the 
 loftiest eloquence our country has produced. 
 
 Webster bore off the palm of victory in this de- 
 bate, whether in the field of oratory or of argument; 
 as an orator he was without a peer, and his logic 
 carried conviction to the hearts of the great mass of 
 the people because he thought as they thought, be-l 
 cause he represented the growing spirit of national- 
 ism which saw safety in Union; because he looked 
 forward to a brilliant future of united action and 
 
178 Story of the Constitution 
 
 not backward to an era of disunion, as the goal of 
 his ambition for his country. He sought to support 
 his conception of the nature of the Union from the 
 Constitution itself and from its provisions he drew 
 the proofs in support of his positions. He went 
 back, to be sure, to the proceedings of the Conven- 
 tion, to the arguments of the Federalist, and to the 
 State conventions, but always with the impression 
 that the arguments deduced from history are sub- 
 sidiary in character, that the true source of informa- 
 tion upon the nature of the document is the 
 Constitution itself, what it then was and what it 
 had come to mean. 
 
 To a certain extent Webster was caught in the 
 toils of the legal: formalism of the age ; he was deeply 
 influenced by the worshipful attitude toward the 
 Constitution that had held sway so long over the 
 people and thought there could be no safer guide to 
 its meaning than the words of the instrument itself. 
 Herein lay the weakness of his reply to Hayne. Its 
 strength and its power upon the people were due to 
 the fact that it made clear to them what had been 
 hazy; it formulated in faultless style the vague con- 
 ceptions of the times; it crystallized the national 
 tendencies and became a part of the people's life and 
 thought, their storehouse of argument upon which 
 they were to draw in succeeding years. 
 
 The Tariff of 1832, though it lowered some of the 
 duties, reasserted the principle of protection and 
 therefore was equally as obnoxious to the South, and 
 to South Carolina in particular, as was the " Tariff 
 of Abominations " of four years previous. Acting in 
 accordance with her previously declared intention, on 
 
Daniel Webster 1 79 
 
 November 24, 1832, South Carolina passed the Ordi- 
 nance of Nullification/ declaring the tariff uncon- 
 stitutional, and null and void within her territory, 
 and the Legislature proceeded by a series of acts to 
 render its execution impossible without recourse to 
 arms. 
 
 On December 10th, President Jackson issued his 
 Proclamation that rang with the spirit of his famous 
 toast, " The Union, it must be preserved ! " The su- 
 premacy of the national government was heralded in 
 no uncertain terms, and to maintain it, he declared 
 that the armed forces of the United States would be 
 used, if necessary, to carry into effect the laws which 
 the Ordinance of Nullification had declared null and 
 void. Calhoun, the foremost champion of Nullifica- 
 tion, resigned his office of Vice-President and was 
 elected a member of the Senate, there to support the 
 cause of South Carolina. 
 
 It was but natural that Webster and Calhoun 
 should lead the opposing forces in this fight and the 
 clash soon came on the Force Bill, a measure to con- 
 fer on the President the powers necessary to secure 
 the enforcement of the law in South Carolina. In 
 his exposition of the doctrine of Nullification, Cal- 
 houn surpassed Hayne in the logic and power of his 
 speech as the master does the pupil. But Webster's 
 reply on the 16th of February, " The Constitution 
 not a Compact of Sovereign States," ^ equalled 
 neither in oratorical power nor logical strength his 
 reply to Hayne. 
 
 Calhoun's strength, as Webster's weakness, was in 
 
 1 See Appendix for the text of the Ordinance. 
 
 2 Writings, vi., 181 ff. 
 
i8o Story of the Constitution 
 
 history. What the Constitution meant in 1789 was 
 the foundation, of Calhoun's argument, and it was 
 dif&cult to controvert his position that the Consti- 
 tution was a compact, and was so regarded by its 
 framers. The support he drew from the Virginia 
 and Kentucky Resolutions, the frequent threats of 
 dissolution in the early days of the Union, and the 
 action of the Hartford Convention rendered his posi- 
 tion a strong one. What the Constitution was in 
 1789, that it was in 1832; such was the conclusion 
 of Calhoun and it was difficult to see how the con- 
 clusion could be avoided. There had been few amend- 
 ments and they had looked rather toward his view 
 than away from it. How, then, was it possible that 
 the nature of the instrument had changed? Was 
 there some subtle process of transformation by which 
 the nature of things was changed without changing 
 their appearance? Was the Constitution the same 
 and not the same? 
 
 Webster likewise attempted to take the same at- 
 titude toward the Constitution and sought to show 
 from history that it had always been what it then 
 was. He would have been wiser to have disregarded 
 history, and to have accepted the Constitution as 
 being the instrument of National Union the people 
 then considered it, for in this lay his true strength, 
 and his appeals to history only weakened an other- 
 wise impregnable position. 
 
 The reply to Calhoun, however, supplemented that 
 to Hayne and the two together did more than any- 
 thing else, perhaps, to mould the sentiment of Union, 
 to give it form, consistency, and coherency in the 
 years of severe trial that were to come. In this, as 
 
Daniel Webster i8i 
 
 in the former speech, there is the appeal to the words 
 of the Constitution itself. He draws upon them to 
 support his principal contention. What does it pro- 
 claim itself to be, a compact or a constitution, which, 
 in the words of Hamilton, is only " another name for 
 power or government"? It is a constitution, an in- 
 strument of government. " The Constitution, sir, is 
 not a contract, but the result of a contract; meaning 
 by contract no more than assent. Founded on con- 
 sent, it is a government proper. . . . The people have 
 agreed to make a Constitution ; but when made, that 
 Constitution becomes what its name imports. It is 
 no longer a mere agreement." ^ 
 
 Futhermore the Constitution itself is authority for 
 the statement that it was ordained by the people of 
 the United States, not by the States as such. But 
 here Webster failed to note that the original pre- 
 amble declared that "We, the people of the States 
 of New Hampshire, Massachusetts, etc.," and that 
 the names of the several States were omitted and the 
 form, " We, the people of the United States," was 
 adopted because of the uncertainty as to which States 
 would adopt the Constitution, and the fact that it 
 would become binding upon such States when adopted 
 by nine.2 Even as it stands, the expression, "We 
 the people of the United States," is capable of a 
 twofold interpretation, and Webster's opponents Were 
 not slow to seize upon the one favorable to their view.* 
 To a calmer generation it would appear futile to 
 
 1 Writings, vi., 201. 
 
 2 Documentary History of the Constitution, iii., 4^4, and Madi- 
 son, Writings, iii., 92 and 422. 
 
 3 Johnston, American Political History, ed. by James A. Wood- 
 bum, i., 47. 
 
i82 Story of the Constitution 
 
 attempt to derive a conclusive argument from either 
 view.^ 
 
 Having established, then, the position that the 
 Constitution is not a compact among sovereign States, 
 but a law and ordinance of government, established 
 by the whole people, just as the State constitutions 
 are established by the people of the States, Webster 
 advances to his next point. This law declares itself 
 to be supreme. " This Constitution, and the laws 
 of the United States which shall be made in 
 pursuance thereof . . . shall be the supreme law 
 of the land; and the judges in every State shall 
 be bound thereby, anything in the constitution or 
 
 j laws of any State to the contrary notwithstand- 
 
 ; ing." ^ 
 
 The practical question which presented itself was : 
 Who had the right to decide in the case of a contro- 
 versy between the States and the central government 
 regarding the extent of the powers conferred upon 
 the latter? All agreed that the Federal Government 
 was one of strictly limited powers and that it could 
 exercise only those rights which had been expressly 
 delegated to it, but as to the extent of those powers 
 there must arise differences of opinion. The doctrine 
 of Nullification asserted that each State, in its sov- 
 ereign capacity as a party to the contract, had the 
 right to determine whether or not Congress had ex- 
 ceeded its powers in the passage of any law, and 
 having determined the question in the affirmative, 
 possessed the further right of declaring such law 
 unconstitutional, and so null and void within the 
 
 1 Cf. Merriam, op. dt., p. 284 ff. 
 " Art. vi. 
 
Daniel Webster 183 
 
 limits of such State.^ Webster admitted that this-^ 
 would be the case if the Union were only a league, 1 
 resting on a compact, but having proved, to his own ; 
 satisfaction at least, that the Constitution was no 
 compact but the supreme law of the land, it followed ' 
 " both by necessary implication and by express 
 grant," that the Federal Government was the final 
 and conclusive judge of its own powers. Only so can 
 the Constitution be supreme.^ 
 
 The exercise of this power by the central govern- 
 ment might take place in either of two ways. First, 
 in the determination of all cases that might arise 
 under the Constitution and laws of the United States, 
 the national Judiciary is declared by the Constitu- 
 tion to be supreme. " As to the cases . . . which do 
 not come before the courts, those political questions 
 which terminate with the enactments of Congress, 
 it is of necessity that these should be ultimately de- 
 cided by Congress itself." ® If not, and each State 
 is to decide for itself, then the dilemma confronts us 
 that " what is law in one State is not law in another. 
 Or, if the resistance of one State compels an entire 
 repeal of the law, then a minority, and that a small 
 one, governs the whole country." * The power of 
 ultimate and final judgment is one that must be en- 
 trusted to the national government under the security 
 of the responsibility of members of Congress to the 
 people. 
 
 The right of each State to declare null and void 
 
 1 Cf. Calhoun's Works, ii., passim. 
 
 2 Webster, Writings, vi., 213. 
 ^Ihid., vi., 219. 
 
 * Cf. Ibid., vi., 196. 
 
1 84 Story of the Constitution 
 
 a law it deemed unconstitutional, was declared by 
 the supporters of Nullification to be a constitutional 
 right and one that might be exercised while the State 
 still remained in the Union. Such a condition, which 
 Webster characterized as " half allegiance and half 
 rebellion," he proved conclusively was and could be 
 ultimately nothing but revolution, open rebellion, to 
 be maintained by force of arms.^ So convincing was 
 his argument that a later generation was compelled 
 to admit its truth and Secession replaced Nullifica- 
 tion. But Secession was admittedly revolutionary, 
 extra-constitutional, of which the justification could 
 be found only in the appeal to the inherent right of 
 all peoples to change their form of government when 
 the evils they endure become intolerable. 
 
 The arguments of both sides rested in large part 
 upon the phraseology of the Constitution itself; the 
 ; appeal to history for justification made by each was 
 j better founded in the case of Calhoun than of Web- 
 ster, but Webster's argument prevailed with the body 
 'I j of the people because it interpreted the Constitution 
 in the light of the popular feeling of the day. There 
 was unquestionably a time when Calhoun's argument 
 would have touched a more responsive chord than 
 Webster's, but that time was past. The generation 
 of Nullification knew no State outside of the Union ; 
 knew not the States, discordant, warring, as in the 
 days of the Confederation. The States of the West 
 knew no other existence than that within the Union 
 and desired no other. Their spirit had been, almost 
 without exception, national in its character and mani- 
 festations, as though the fact that the Western Terri- 
 1 Webster, Writings, vi., 192 ff. 
 
Daniel Webster 185 
 
 tory had been a bond of union in the days of the 
 Confederation, had left its stamp upon the disposi- 
 tion of the States formed from it. The North and 
 the West could not conceive of the right of a State 
 to destroy the Union, as Nullification and Secession 
 would inevitably have destroyed it. Hence came 
 the well-nigh universal response with which the 
 noble argument of Webster was met throughout these 
 sections. 
 
 Webster's attitude with regard to the Bank was 
 but another indication of his general position, one 
 more evidence of his general stand with respect to 
 the powers of the national government.^ Though 
 Webster had stood with Jackson in sustaining the 
 Union against the destructive doctrine of Nullifica- 
 tion, he could not join him in what he deemed a 
 foolish, if not a criminal, attack on the United States 
 Bank. Webster felt no scruple as to the constitu- 
 tionality of the Bank and was convinced of its value 
 to the country; Jackson's antagonism to it he re- 
 garded in the light of a personal hatred, aroused by 
 the belief that the Bank was a political machine in 
 the hands of his enemies, and his action in reference 
 to it as a gross violation of the Constitution. Web- 
 ster joined in passing the Resolution of Censure, the 
 expunging of which from the records of the Senate 
 became the most ardent desire of all Jackson men. 
 
 From the days of Nullification to the day of 
 Webster's death, the great issue before the country 
 was slavery.^ In the very year that Webster made 
 
 1 For Webster's speeches on the Bank, see Works, vi., vii., 
 and viii. 
 
 2 Cf. A. B. Hart, Slavery and Abolition, 1831-1841. 
 
i86 Story of the Constitution 
 
 his reply to Calhoun, the National Anti-Slavery So- 
 ciety was established and Abolition became an active 
 principle. Webster was in no sense an abolitionist. 
 In his fiercest condemnations of slavery, there is 
 never a hint of abolition. Against the slave trade, 
 against the extension of slavery, against the institu- 
 tion of slavery itself, he might hurl his most savage 
 attacks, but never without recognition of the position 
 that had been assured it by the Constitution. The 
 desire to uphold the Union and the Constitution 
 was as strong in Webster on March 17, 1850, as 
 on February 16, 1833, but his idea as to the means 
 had changed. In 1833 he was bitterly opposed to 
 the compromise mediated by Clay and declared " that 
 the time had come to test the strength of the Con- 
 stitution and the government." ^ In 1850, facing a 
 united and menacing slave power, the strongest politi- 
 cal force in the country, he deemed it wise to yield 
 to its demands and not forbid slavery in the new 
 Territories. Such a concession seemed to offer the 
 only hope of preserving the Union. To forbid slav- 
 ery, moreover, in these Territories was useless, and 
 he " would not take pains uselessly to reaffirm an 
 ordinance of nature, nor to re-enact the will of God." ^ 
 Early and late he sought to guard against Seces- 
 sion and war; in 1833 he was willing to put South 
 Carolina to the test, but in 1850 he would set the 
 threatening agitation at rest and ensure a final and 
 conclusive settlement by yielding. But peace was 
 not to be secured through an attempt to silence the 
 agitation; the narcotic of constitutional guarantees 
 
 1 Quoted in Lodge, op. cit., p. 222. 
 - Writings, x., 84. 
 
Daniel Webster 187 
 
 was no longer effective in deadening the moral con- 
 science, and a decade later, the men of the North 
 remembered only the Webster of the earlier days — 
 the man who voiced a nation's cry for life; the man 
 to whom Liberty meant Union and Union meant 
 Liberty, " one and inseparable, now and forever L" 
 
IX 
 
 John C. Calhoun. Retardation through 
 Sectional Influence 
 
 189 
 
JOHN C. CALHOUN 
 
 1782. March 18. 
 
 1802-04. 
 
 1807. 
 
 1808. 
 
 1811. 
 
 1816. 
 
 1817-1825. 
 1824. 
 1828. 
 
 1832. 
 
 1835. 
 1836. 
 1842. 
 1844. 
 1845. March 4. 
 
 Dec. 1. 
 1849. 
 
 1850. March 31, 
 
 Born in Abbeville district, S. C. 
 
 At Yale. 
 
 Admitted to Bar. 
 
 Elected to State Legislature. 
 
 Elected as Representative to Twelfth Con- 
 gress. 
 
 Advocated war with Great Britain. 
 
 Advocated Tariff and Bank Bill. 
 
 Secretary of War. 
 
 Vice-President. 
 
 Vice-President. 
 
 " The South Carolina Exposition." 
 
 Resigned Vice-Presidency and became Sen- 
 ator. 
 
 Nullification measures. 
 
 Re-elected to Senate. 
 
 Opposed reception of anti-slavery petitions. 
 
 Resigned, to take effect March 3, 1843. 
 
 Secretary of State. 
 
 Retired from Cabinet. 
 
 Took seat in Senate again. 
 
 " Address to the People of the South." 
 
 " A Disquisition on Government." 
 
 " A Discourse on the Constitution and Gov- 
 ernment of the United States." 
 
 Died at Washington. 
 
 190 
 
IX 
 
 John C. Calhoun. Retardation through 
 Sectional Influence 
 
 IVFO two names in American history are more 
 *■ ^ closely associated than those of Webster and 
 Calhoun ; no names are more often mentioned in con- 
 junction and no careers present more startling con- 
 trasts. North and South, Union and Secession, Free 
 and Slave, are summed up in these two men, — in their 
 lives, their characters, and their public acts. 
 
 In time they were contemporary in the strictest 
 sense, for both were born in the year 1782, and they 
 died within two years of each other, Calhoun in 1850 
 and Webster in 1852. Both were graduates of New 
 England colleges, for Calhoun, though born in South 
 Carolina, was not satisfied with the limited opportu- 
 nities offered by the South and so sought the larger 
 advantages of Yale where he graduated in 1804. '^ 
 Later he studied law at the then prominent law 
 school at Litchfield, Connecticut. Both men entered 
 public life at about the same time, both were members 
 of the House and of the Senate, both were members 
 of Cabinets, and both were aspirants for the Presi- 
 dency; Calhoun, moreover, was twice elected Vice- 
 President. 
 
 1 Lives by H. von Hoist and Gaillard Hunt. 
 
 191 
 
ig2 Story of the Constitution 
 
 Calhoun entered public life in 1808 as a member 
 of the State Legislature, having already demonstrated 
 the logical character of his mind and his sound men- 
 tal equipment by an unusually rapid rise to promi- 
 nence at the bar. Three years later he was elected 
 a member of the Twelfth Congress. Henry Clay had 
 at the same time been elected a member of the House 
 and was chosen Speaker. Clay appointed Calhoun 
 a member of the Committee on Foreign Eelations 
 and the Committee elected him chairman. Both Clay 
 and Calhoun were new men in the House, though 
 Clay had served a few months in the Senate, and 
 their elevation to the two most important positions 
 in it is explicable only on the ground of their well- 
 known view on the question of a war with England.^ 
 The West and the South were eager for the war, 
 while New England opposed it. The latter was more 
 jealous of the growing influence of the other sections 
 in national affairs than zealous for the national 
 honor, especially when its defence meant a loss to 
 her commercial interest. 
 
 Clay and Calhoun drew in with their first breath 
 the vigorous air of the new democracy of the West, 
 alive with the spirit of nationality; they were the 
 product of a new era, the advance guard of a new 
 order of things in our political life, and they swept 
 away with ruthless hand the statesmen of the older 
 generation, the leaders who had developed out of the 
 revolutionary struggle. Mr. Bagehot has told us how, 
 in English politics, it has seemed at times that a whole 
 generation of statesmen, who have grown old in their 
 leadership and who have held on long beyond their 
 
 ^ Cf. Von Hoist, John C. Calhoun, p. 15 ff. 
 
John C. Calhoun 193 
 
 allotted years, drops off all at once and its place is 
 taken by a new and younger generation. Instead of 
 a gradual process of removal which leaves no break, 
 there is an abrupt severance as though a whole gene- 
 ration had been passed over. 
 
 Some such condition existed at the opening of the 
 Twelfth Congress. Madison had succeeded to the 
 Presidency in 1809, in regular line of promotion from 
 the Secretaryship of State, bringing with him all the 
 traditions of a former period and perpetuating the 
 principles and practices of other times. But with 
 the coming of Clay and Calhoun and their brilliant 
 following of young men, the scene changes. Madi- 
 son, to be sure, continues to be President, but he is 
 in no sense leader as Jefferson had been; the prin- 
 cipal r61e has passed from the Executive to Congress, 
 and interest centres around the Speaker and the 
 Chairman of the Committee on Foreign Relations; 
 they assume the leadership and force on an unwilling 
 President a party war. 
 
 Webster entered Congress two years later than 
 Calhoun and as an opponent of the war with Eng- 
 land. The conflict with Calhoun that lasted nearly 
 forty years began at once. Fate seemed to have 
 created these two to play the rdles of opposing cham- 
 pions, for each changed his position with respect to 
 the great issues before the country and thus remained 
 ever upon opposing sides. Calhoun was at this time 
 and continued for some years to be, an advocate of 
 measures and of principles that were of a strongly 
 nationalizing character.^ To these Webster found 
 
 1 Von Hoist, op. cit., p. 26 ff. For Calhoun's early speeches 
 cf. Works, ii., ed. by R. K. Cralle. 
 
 \ 
 
194 Story of the Constitution 
 
 himself opposed. Calhoun was eager for a war that 
 did more than all else that had preceded it, to create 
 a national feeling. Webster's first political success 
 came from his hostility to this war. Both were in- 
 fluenced here, as throughout their lives, by the atmos- 
 phere around them, though it is Calhoun who now 
 feels the throb of the great nation's life in his pulses 
 while Webster is under the domination of New Eng- 
 land's antipathy to the war. Calhoun advocates a 
 ! tarifE and internal improvements; Webster opposes 
 them. As time went by influences were at work 
 which eventually brought them again, but with posi- 
 tions reversed, into opposition upon these same ques- 
 tions. Calhoun ceases to advocate a tariff and 
 i internal improvements; Webster ceases to oppose 
 ! them and becomes their advocate. Calhoun ceases 
 to think of national welfare before State interests; 
 Webster comes to think first and always of national 
 union and greatness. Calhoun begins to see in na- 
 tional strength a menace to liberty, in too close a 
 union a danger to freedom; Webster sees safety only 
 in union and beholds the blessings of liberty im- 
 perilled by the sovereignty of the States. 
 
 During the eight years of Monroe's administration, 
 Calhoun was Secretary of War and showed himself 
 an administrator of a high order; in 1824 and again 
 in 1828 he was elected Vice-President. It was during 
 these years of administrative work that Calhoun's 
 opinions began to change, and it is much to be re- 
 gretted that his activities were not such as to call 
 out expressions of his opinions, that we might with 
 greater certainty trace the progress of the change. 
 This much seems sure: that when Calhoun returned 
 
John C. Calhoun 195 
 
 to South Carolina in 1828 after the passage of the 
 " Tariff of Abominations," he had been so long away 
 from, and had gotten so far out of touch with, the 
 people of the State that he was unprepared for the 
 great change that had come over them. The repre- 
 sentations made to him by the leading men who 
 visited him at his home at Fort Hill made a deep 
 impression upon him ^ ; it did not seem possible, as 
 he brooded over the distressing economic condition 
 thus presented to his attention, that the framers of 
 the Constitution could ever have intended that a 
 single State or several States should suffer from na- 
 tional legislation, as he believed South Carolina was 
 then suffering from the tariff; and as he himself 
 said, " he turned to the Constitution to find a 
 remedy." The result was the " South Carolina Ex- 
 position," ^ in which Calhoun set forth for the first 
 time a thorough-going programme of Nullification. 
 
 The Virginia and Kentucky Resolutions of 1798 
 were claimed as the lawful source of the doctrine, 
 and the great name and fame of Jefferson were ad- 
 duced in its support. Despite Madison's protest 
 against the use of Jefferson's name " as a pedestal 
 for this colossal heresy," ^ the possibility of reading 
 into the Resolutions the meaning Calhoun attached 
 to them remained and contributed its share toward 
 strengthening the sentiment. The time, however, was 
 not yet ripe for more than a formal declaration. 
 There was a hope that the tariff, through its inequal- 
 
 ''■ Cf. D. F. Houston, A Study of Nullification in South Caro- 
 lina. 
 
 2 Works, vi., 1 ff. 
 
 * Madison, Letters and Other Writings, iv., 229. 
 
196 Story of the Constitution 
 
 ities, would prove unendurable to the North as well 
 as to the South, and that Jackson, a Southerner and 
 a State-Rights man, would favor its repeal.^ Mean- 
 while the efforts of Calhoun were directed to strength- 
 ening his position and to consolidating the forces that 
 were to sustain him. 
 
 Calhoun's hope of relief through Jackson soon 
 proved vain, for though the duties of 1828 were low- 
 ered, the principle of protection was reaffirmed in the 
 Act of 1832. The time had now come for a more 
 active programme of resistance, for a trial of the 
 doctrines that had been proclaimed as a threat. 
 South Carolina, through a convention, passed in 
 November the Ordinance of Nullification,^ declaring 
 the tariff laws "null, void, and no law, nor binding 
 upon South Carolina, her officers and citizens," and 
 threatening Secession if force should be used in the 
 attempt to execute them. The Legislature of the 
 State met in the same month and proceeded to pre- 
 pare for war and to resume the powers which had 
 been expressly granted to the Government of the 
 United States. in the Constitution. 
 
 Calhoun was the guiding spirit in South Carolina's 
 every action, and soon after President Jackson had 
 issued his famous proclamation of December 10th, in 
 which he declared his fixed intention to carry out 
 the law in the face of all opposition, Calhoun re- 
 signed the Vice-Presidency and was elected to the 
 Senate, there to fight the losing battle of State-Rights 
 and Slavery for the remainder of his life. 
 
 If Calhoun had believed that Jackson would sup- 
 
 iVon Hoist, op. cit., 82 ff. 
 2 See Appendix. . 
 
John C. Calhoun i97 
 
 port South Carolina, or at least not oppose her by 
 force, because of his Southern sympathies, or if he 
 trusted that because Jackson had failed to support 
 the Supreme Court's decision in the Cherokee Indian 
 case, he would follow a similar course of inaction on 
 the present occasion, he was far from a correct in- 
 terpretation of the situation or of Jackson's char- 
 acter. It was doubtless a great satisfaction to 
 Jackson to leave unexecuted a decision of his old 
 enemy, John Marshall; it was an opportunity to en- 
 force the lesson that Federalist principles were no 
 longer to be the order of the day; a notice that the 
 long predominance of the Court was at an end; that 
 Jackson as well as Marshall would act as interpreter 
 of the Constitution whenever it became necessary 
 from the standpoint of Executive action. Had he 
 not sworn to uphold the Constitution, and to keep 
 his oath must he not uphold it as he understood it? 
 
 Hatred of Marshall confirmed him in inaction in 
 the Cherokee case. The conditions were exactly re- 
 versed in the case of South Carolina. Calhoun he 
 hated with even more violence than he did Marshall,^ 
 and this hatred led him to proclaim a stronger na- 
 tional sentiment than he could well maintain when 
 Nullification no longer threatened. Jackson was de- 
 termined to have his will. Action in the one case 
 and inaction in the other were alike to him, so his 
 imperious will might have its way, and contradictory 
 constitutional doctrines easily found lodgment in the 
 "old Hero's " breast when passion stirred it. 
 
 The result of the conflict between South Carolina 
 
 1 C/. Hunt, op. cit., p. 112; Von Hoist, op. cit, p. 84, and 
 Sumner's Andrew Jackson, p. 196 ff. 
 
1 98 Story of the Constitution 
 
 and the Federal Government added another to the 
 many compromises in our constitutional history. _ 
 Both sides claimed the victory which belonged clearly 
 to neither. For the time being, Calhoun had accom- 
 plished what he immediately desired, for the tariff 
 was to be reduced. But his interpretation of the 
 Constitution was not accepted, and the spirit of 
 nationality continued to increase in strength till it 
 reached its final triumph in the Civil War. 
 
 Early in the year 1833, Calhoun in fulfilment of 
 his object in entering the Senate, stated in masterly 
 fashion the interpretation of the Constitution that 
 underlay Nullification.^ Lacking in the fire that 
 made Webster's eloquence overpowering, Calhoun 
 was, nevertheless, a great orator to whom men lis- 
 tened with rapt attention. His deep earnestness, 
 logical precision, keen analysis, and almost prophetic 
 vision of the future, when added to the fact that he 
 spoke as the unquestioned representative of the South 
 and its peculiar interests, lent a gravity and impres- 
 siveness to his words, second to that inspired by none. 
 
 Calhoun was no longer national in his feelings and 
 sympathies ; he had repudiated all his earlier national 
 views and was become the representative of a section 
 and its interests. Yet his love for his country and 
 for the Union was intense, but it was love for a kind 
 of Union that was dead. With almost his last breath 
 he proclaimed his love for it and would save it from 
 destruction at the hands of those who called them- 
 selves its friends.^ The word he most wished en- 
 graved on his tombstone was Nullification, for it 
 
 ' Works, ii., 197 ff. 
 ^Ibid., iv., 577. 
 
John C. Calhoun 199 
 
 meant the freedom of South Carolina and of every 
 other State from oppressive measures on the part of 
 the general government; it meant the liberty of the 
 States, and the preservation of the Union in its 
 original form. To him the Union of Webster's de- 
 sire meant tyranny, and tyranny meant rebellion and 
 dissolution of the Union. If the Union was to be : 
 saved, it could only be by reverting to its original 
 form from which there had been so wide a departure. 
 
 Led on by his zeal for his State, for the South, 
 and its institution of slavery, he could see no safety 
 in any form of Union in which the minority could 
 not protect itself against the majority, in which a 
 State could not defend its reserved rights by being 
 itself the judge whether or not these rights had been 
 infringed. It was self-evident, he thought, that to 
 make the Federal Government the judge of its own j 
 powers was to make its discretion, not the Consti- j 
 tution, the measure of those powers, and to place j 
 every right and liberty of the States at the mercy/ 
 of this discretion, and to destroy the true nature of 
 the Union. He believed in a Confederation of sovr 
 ereign States, united by a compact for certain speci- 
 fic purposes. The Constitution he regarded as such^ 
 /a compact among sovereign States and it was not 
 difl&cult to find abundant warrant for his view in 
 the words of the framers of the document.^ 
 
 If the Constitution was a compact, then, argued 1 
 Calhoun, the Union was a Confederation and not a 
 Federal State. The only result of an agreement was 
 an agreement, and not, as Webster declared, " a gov- 
 
 1 Cf. Works, i., Ill ff. Discourse on the Constitution and 
 Government of the United States. 
 
200 Story of the Constitution 
 
 ernment proper." The general government was 
 merely the agent of the States and when the agent 
 exceeds his authority, when the general government 
 passes a law that one of the parties to the compact 
 considers unconstitutional, that party may declare 
 such law null and void. If the right of Nullification 
 were recognized, the majority would be more willing 
 to listen to reason, and would be forced to accommo- 
 dation. It was a constitutional right to be exercised 
 for the preservation of the Union; only by its use 
 could the members of the Union live together in 
 peace. After Nullification, the last resort of an 
 injured State was Secession! 
 
 Calhoun proclaimed himself a Democrat of the 
 strictest sect and doubtless he believed that he was; 
 ^et the foundation of all his political belief rests 
 upon the rejection of the corner-stone of democracy, 
 the belief in the principle of the supremacy of the 
 majority. From the days of the Constitutional Con- 
 vention there had been an incongruous alliance of 
 men of conflicting views. In the Convention itself, 
 the men of the small-State party, advocates of State- 
 Rights, allied themselves in the main with the ad- 
 vocates of democracy; the alliance was made per- 
 manent by Jefferson and carried to the point of 
 absurdity by Calhoun.^ State-Rights and democracy 
 are in an irrepressible conflict and the strictest of 
 the strict constructionists was a Democrat in name 
 only! The great principles of modern democracy, 
 the equality of all men, the rule of the numerical 
 majority, and manhood suffrage did not kindle his 
 soul with a glow of enthusiasm. He was an aris- 
 
 1 Oliver, Alexander Hamilton, p. 151. 
 
John C. Calhoun 201 
 
 tocrat in feeling and belief, though he would have 
 been the last to admit it. He believed himself a 
 Democrat because he cheated himself with words ; the 
 shadow, not the substance of democracy, pleased his 
 fancy; the outward form, not the inner reality of 
 his principles, was democratic. 
 
 To soften the sharp edge of Nullification and the 
 rule of a minority, Calhoun developed the idea of a 
 " concurrent majority." ^ The rule of a numerical ^-^ 
 majority he regarded as capable of the greatest tyr- 
 anny. Had he not experienced its evil effects in 
 South Carolina? For protection against such pos- 
 sible tyranny, he would put it in the power of the 
 minority to protect itself, or rather he would do away 
 with the rule of the numerical majority and in its 
 place he would set an intricate system for the repre- ^ 
 sentation of interests, so that both numbers and 
 interests must concur in all legislation. 
 
 The application of such a principle, as Webster 
 rightly declared, was to substitute the control of 
 the minority for that of the majority, and to over- 
 throw democracy as it had been known and accepted 
 since the formation of the Constitution. However 
 excellent the idea of the concurrent majority may 
 have been, it was not democratic and it was folly to 
 call by the name of democracy a theory which, when 
 applied to the Federal Government, rendered it pos- 
 sible for a few States to prevent all action on the 
 pa.rt of the government. 
 
 To some extent, Calhoun as well as Webster, 
 sought the proofs of his view of the nature of the^ ' 
 Union in the Constitution itself, but he differed fron|^ ' 
 
 ' Works, i., 27 f. 
 
202 Story of the Constitution 
 
 Webster in that with him the argument from the 
 Constitution itself is subsidiary in character; it is 
 not the primary and fundamental proof; that is to 
 be found in the principle that underlies all govern- 
 ments. Calhoun starts with a radical departure 
 from the principles of the school of political philo- 
 sophy that had gone almost unquestioned for so 
 many years and that had been the faith of the 
 " Fathers " of the Constitution. The doctrine of 
 the social contract as the basis of society and of gov- 
 ernment had been almost universal among English- 
 speaking peoples since the days of John Locke; for 
 the French it had been a national fetish since 
 Kousseau. Calhoun rejected this theory and under 
 the influence of the changed basis of the world's 
 philosophical thought, of which he himself was per- 
 haps unconscious, he barkens back to Aristotle and 
 declares that man is by nature a political animal 
 and must live in society if he live at all.^ 
 
 The rejection of the contract theory of society 
 sounds paradoxical in a man who personifies the con- 
 tract theory of the Constitution. If there is any one 
 fact about Calhoun's political ideas that is more 
 widely known than any other, it is that he believed 
 the Constitution was a compact. The same belief 
 was held by the majority of the members of the Con- 
 stitutional Convention and the Constitution was re- 
 peatedly declared to be both a social compact for 
 the establishment of society, and a political contract 
 for the institution of a particular kind of govern- 
 ment. From the general principle of the natural 
 
 1 Works, l, 1 ff. 
 
John C. Calhoun 203 
 
 law school, that unanimity was necessary to estab- 
 lish the contract, the principle was deduced that it 
 could not be dissolved except by unanimous consent; 
 in this fashion an argument had been drawn by 
 Madison to demonstrate the change that had been 
 brought about in the nature of the Union by the 
 adoption of the present Constitution. 
 
 Such a view was utterly at variance with Calhoun's 
 theory; for him society was natural and necessary; 
 some form of political organization was essential; 
 the choice was not between government and no gov-! 
 ernment, but between the various forms of govern- 
 ment^; the Constitution, therefore, could not be a'! 
 contract for the establishment of society but of gov-J 
 ernment. From this standpoint Calhoun was re- 
 lieved from the necessity of refuting the general 
 argument regarding the unanimity necessary for the 
 dissolution of the contract. Further, if the Consti-'"\ 
 tution was not a social contract, then it did not 
 necessarily follow that the contracting parties were 
 the individuals living under it, and it became a rela- 
 tively easy matter to construct an argument from 
 the historical circumstances surrounding the making 
 and the adoption of the Constitution, which set forth 
 in very plausible, not to say convincing, form, the 
 view that the contracting parties were the sovereign 
 states.^ 
 
 It has been said with a great deal of truth that if 
 you admit the correctness of Calhoun's premises, you 
 cannot consistently reject his conclusions. The char- 
 acter of his mind was extremely logical — too logical 
 
 ' Works, 1., 2. 
 2 Ibid., i., 111. 
 
204 Story of the Constitution 
 
 to permit of his being a really great statesman, for 
 his devotion to logical sequence led him to lose sight 
 of the movements of history, which do not always 
 fall within the bounds of a logical course. Even had 
 Calhoun's view been the correct one at the time of 
 the adoption of the Constitution, it was no longer 
 so. There had been developed a strong national feel- 
 ing that had availed itself of the possibilities of the 
 Constitution to realize itself in the forms and prac- 
 tices of a national state. Calhoun failed to take ac- 
 count of this feeling or imagined, for a time at least, 
 that it could be turned back in its course. 
 
 However much one may differ from Calhoun in his 
 views of the nature of the Union, the time is past 
 when anything but the most patriotic motives can 
 be attributed to him. Narrow, twisted, perverse, 
 even sectional, as his views may have been, to him 
 they were genuine and begotten of an intense love 
 for what he regarded as the only true and lasting 
 form of Union. Our regret must be that his con- 
 ception of patriotism was so distorted. He saw in 
 a league of States, in a confederacy, all those guaran- 
 tees of liberty and security which we regard as the 
 peculiar blessing of an " indissoluble union of inde- 
 structible States." 
 
 The rejection by Calhoun of the principle of the 
 social contract as the basis of society had a far deeper 
 significance for his whole conception than at first 
 sight would be apparent. It indicated not only a 
 change of view regarding the nature and origin of 
 society, but also a complete change in the entire 
 philosophical basis of his thought ; it deiioted the as- 
 sumption of a new standpoint from which to judge 
 
John C. Calhoun 205 
 
 of political phenomena, it marked the beginning of 
 the organic theory as it was awakened, first by the 
 historical, and later by the biological, character of 
 men's thought, working under the influence of evo- 
 lution. In place of the purely mechanical concep- 
 tion of society, which placed the union of its atoms 
 in an act of will, in a legal volition, Calhoun set 
 the immutable principles of human nature and dis- 
 tinguished sharply between the action of law and of 
 nature.^ 
 
 With this distinction in mind, Calhoun declared 
 the Constitution to be a compact and that the only 
 result of a compact was a compact. Nowhere is the 
 fundamental difference in thought between Webster 
 and Calhoun more clearly shown than in this par- 
 ticular. Webster, grasping the full significance of 
 the national sentiment that had been developed un- 
 der the Constitution, yet stands upon the same plane 
 of thought regarding the nature of political action 
 as did the makers of the Constitution, and main-~ 
 tained that the Constitution was a compact, if 
 thereby no more is meant than agreement, but the 
 result of that agreement is a government. Calhoun, 
 from the new standpoint of all his thought, also de- 
 clared the Constitution to be a compact, but the con- 
 clusion he draws is that the only result of a contrac£~~l « 
 is a contract, and that therefore no State could have W ' 
 been created by the Constitution, but only an alliance 1 
 whose common agent was the Federal Government. --— —I 
 
 Madison lived long enough to see the confusion 
 that was arising from this use of old words with a 
 
 1 Cf. McLaughlin, The Social Compact and Constitutional 
 Construction, in American Historical Review, April, 1900. 
 
2o6 Story of the Constitution 
 
 new meaning. To the one side, contract was the 
 old and immemorial fashion in which governments 
 had been set up, the fashion that had been conse- 
 crated by the Declaration of Independence. To the 
 other, it was impossible that a contract should do 
 more, or be more, than a contract at law, which con- 
 fessedly could not create anything by its terms save 
 obligations upon the parties. 
 
 To the followers of Calhoun the Constitution, then, 
 was a contract or compact which united sovereign 
 states into a league, thereby imposing upon them 
 certain obligations and conferring upon them certain 
 rights and duties. The measure of the obligation 
 must rest in the judgment of the contracting parties. 
 A sovereign State was the final judge of its own 
 competence ; sovereignty meant the final and ultimate 
 power of judgment; it was, therefore, one and indi- 
 visible;- — to divide it was to destroy it.^ The issue 
 was sharply drawn and the old theory of a divided 
 sovereignty was rejected. Was the Federal State 
 sovereign or did sovereignty lie in the individual 
 States? Calhoun did not hesitate to ascribe sov- 
 ereignty to the individual States and to deny to the 
 Union all right and title to such a power. That lie 
 was wrong only war could settle, and that only for 
 the future! 
 
 No consideration of Calhoun's influence upon the 
 history of our constitutional development can omit 
 a review of his position on slavery. We have seen 
 that in his earlier years he was strongly national in 
 his thought and feeling, while in his later years under 
 
 ^ Works, i., 146; " Sovereignty is an entire thing; — to divide, 
 is, — to destroy it." Cf. Madison, Letters, etc., iv., 61 and 419. 
 
John C. Calhoun 207 
 
 the name of Union, he sought to give power to a 
 section and was forced to replace a national ideal 
 by that of a confederacy. The cause of this 
 change was slavery, that " peculiar institution " 
 whose security became the passion of his life. Its 
 existence he at first defended, as did most other men 
 of the South, as an institution protected by the Con- 
 stitution ; but subtle forces were at work which trans- 
 formed the ideas of the South. Slavery came to be 
 regarded not merely as an economic necessity, 
 guaranteed by the Constitution, but as a " positive 
 good," as Calhoun so often asserted.^ 
 
 Convinced of the necessity of slavery, his every 
 effort was devoted to its defence. Inspired with a 
 love of his country, he predicted with the voice of 
 a seer the conflict that must come unless slavery 
 were secured beyond the possibility of disturbance. 
 To save the Union and to render slavery safe, he 
 proclaimed Nullification in 1833; to guarantee the 
 permanence of equality between the North and the 
 South, to maintain that equilibrium he regarded as 
 essential, he became Secretary of State in 1844 for 
 the express purpose of bringing Texas into the 
 Union ; to maintain the same equilibrium he opposed 
 the admission of California as a free State and, when 
 his efforts to prevent it proved unavailing, his voice 
 was that of a Cassandra, proclaiming swift destruc- 
 tion to ears that heeded not. With his last words 
 in the Senate, three weeks before his death, he uttered 
 a final appeal to his countrymen to avoid the dangers 
 of disunion that threatened from all sides. His 
 remedy was an amendment to the Constitution, 
 
 1 Von Hoist, op. dt., p. 164 ff. 
 
2o8 Story of the Constitution 
 
 which, as was afterwards discovered, provided for a 
 double Executive, a Northern and a Southern Presi- 
 dent, each with a power of veto upon legislation hos- 
 tile to his section. An idle and visionary scheme! 
 A chimera in the realm of constitutional law! A 
 last attempt to avoid the irrepressible conflict by 
 legislative enactment, to smother a growing moral 
 sentiment beneath constitutional formalism, to pre- 
 vent disunion by destroying the nation! 
 
X 
 
 Abraham Lincoln. Growth through 
 Civil War 
 
 209 
 
ABRAHAM LINCOLN 
 
 Born in Kentucky. 
 
 Removed to Indiana. 
 
 Removed to Illinois. 
 
 Elected captain of volunteers in Black Hawk 
 
 War. 
 Postmaster in New Salem. 
 Deputy surveyor of Sangamon County. 
 Representative in State Legislature. 
 Admitted to Bar. Settled in Springfield. 
 Representative in Congress. 
 Representative in State Legislature. 
 Douglas debates. 
 Elected President. 
 Civil War. 
 
 Issued Emancipation Proclamation. 
 Re-elected President. 
 Shot by John Wilkes Booth in Ford's Theatre, 
 
 Washington. 
 April 15. Died. 
 
 1809. 
 
 Feb. 
 
 12. 
 
 1816. 
 
 
 
 1830. 
 
 
 
 1832. 
 
 
 
 1833. 
 
 
 
 1834. 
 
 
 
 1834-42. 
 
 
 1837. 
 
 
 
 1847- 
 
 ■49. 
 
 
 1854. 
 
 
 
 1858. 
 
 
 
 1860. 
 
 
 
 1861- 
 
 65. 
 
 
 1863. 
 
 Jan. 
 
 1. 
 
 1864. 
 
 
 
 1865. 
 
 April 
 
 14, 
 
Abraham Lincoln. Growth through 
 Civil War 
 
 THE ten years following Calhoun's death brought 
 a startling fulfilment of his prophetic utter- 
 ances on the slavery question. The Compromise of 
 1850 resulted in only a temporary cessation of the 
 agitation ; the effort to silence the voice of an awaken- 
 ing moral conscience by legislation proved futile, and 
 in 1854 the Kansas-Nebraska Bill, repealing the Mis- 
 souri Compromise and throwing open to slavery vast 
 regions of the Northwest, more than undid all the 
 good that had been accomplished by the compromises 
 of former years. The fight for " bleeding Kansas " 
 stirred both North and South to a depth before un- 
 known and aroused hatreds and animosities that 
 boded ill for the nation's future. The fratricidal strife 
 which Calhoun had foreseen was already imminent, 
 and the vision he had shuddered at would soon be 
 realized unless some solution of the question of the 
 extension of slavery could be reached. Douglas's 
 doctrine of " Squatter Sovereignty " proved a de- 
 lusion. Its sole merit was that it furnished the 
 occasion that made Lincoln a national figure. 
 
212 Story of the Constitution 
 
 Born in Kentucky of a family which he himself de- 
 signated as of the second rank, Lincoln early moved 
 with his parents to Indiana and later to Illinois.^ 
 The story of his poverty and privation, of his struggle 
 for an education under the most adverse circum- 
 stances and of his final success is so well known as 
 not to need recounting. Bred of a non-slavehold- 
 ing stock and reared among a free-State people, Lin- 
 coln had from early manhood a deep-rooted conviction 
 of the evils of slavery. As time passed, this moral 
 conviction was strengthened and took shape politi- 
 cally in a literal acceptance of the words of the 
 Declaration of Independence that " all men are 
 created equal." These words became the inspiration 
 of all his political action from his entrance into 
 politics to his tragic death in 1865. 
 
 After a brief term of service in the State Legisla- 
 ture, Lincoln was elected as a Whig to a seat in the 
 House of Representatives in 1846. His attitude 
 toward the Mexican War was what might have been 
 expected. Though he was willing to support it with 
 his vote when it came to a question of men or sup- 
 plies, he was unwilling to accept the view that the 
 war was one of defence and undertaken solely 
 because of Mexican aggression. Such an attitude 
 violated his every instinct of justice and his course 
 of opposition rendered his re-election impossible.^ 
 From this time till his nomination for Senator by 
 the Eepublicans of Illinois in 1858, Lincoln pursued 
 
 1 For biographies, see Nicolay and Hay, J. T. Morse, Jr., and 
 Ida M. Tarbell. 
 
 " For the so-called " Spot Resolutions," see Works, i., p. 318; 
 Mexican War Speech, i., 327. 
 
Abraham Lincoln 213 
 
 the practice of law without acquiring more than a 
 moderate reputation or success. He had, however, 
 firmly established a reputation for good sense and 
 good humor, for large-mindedness, and for an un- 
 selfish honesty that won for him the affectionate 
 nickname of " Honest Abe." 
 
 Lincoln's views on slavery were well known. He 
 hated it as an institution and regarded its continued 
 existence as a curse upon a free country, yet he saw 
 no means of getting rid of it except by the action 
 of the slaveholding States themselves. The Consti- 
 tution had recognized its existence; this very recog- 
 nition had been part of the price paid for Union and 
 he believed in keeping the bargain. 
 
 Within each State the general government had no 
 control over domestic institutions, but within the na- 
 tional Territories he thought the matter was quite 
 different. There was no reasonable doubt to his mind 
 that Congress, from the Ordinance of 1787 till the 
 Kansas-Nebraska Bill of 1854, had had the power 
 and had exercised it, of prohibiting slavery in the 
 Territories.^ The " Fathers " of the Constitution, he 
 thoroughly believed, were persuaded of the evil of 
 slavery and that its existence would be of short 
 duration. Had the Constitution not forbidden the 
 foreign slave trade after the year 1808? Had not 
 the Northwest Territory been made free forever? 
 Was there not every reason to believe that emancipa- 
 tion would take place in the South as it had done 
 in the North? That the framers of the Constitution 
 could have wished to perpetuate slavery was in- 
 credible to him. How much less could they have 
 1 Cf. speech at Peoria, Oct. 16, 1854, Works, ii., 190 ff. 
 
214 Story of the Constitution 
 
 intended to extend it! But tlie repeal of the Mis- 
 souri Compromise by the Kansas-Nebraska Bill 
 threw open the Territories to the possibility of 
 slavery; the Dred Scott decision went a step further 
 and proclaimed the impotency, both of Congress and 
 of the territorial Legislatures, to prohibit slavery 
 within the national domain. 
 
 Dred Scott, it will be recalled, was a slave who had 
 been taken by his master from Missouri into a free 
 Territory, and after several years spent there had 
 been brought back to Missouri.^ He entered suit for 
 his freedom and the case went to the Supreme Court 
 on a question of jurisdiction. Chief Justice Taney 
 in delivering the judgment for the Court did not con- 
 fine himself to the immediate question at issue, but, 
 after declaring that Dred Scott was not a citizen in 
 the meaning of the Constitution and therefore had 
 no right before the Court, went on to establish the 
 doctrine that slaves were property, that the Consti- 
 tution provided that no man could be deprived of 
 his life, liberty, or property without due process of 
 law, and that therefore it was beyond the competence 
 of Congress or of the territorial Legislatures to for- 
 bid the carrying of slaves, the owner's property, 
 within the limits of any Territory. By the obiter 
 dicta of this decision the free Territory was no longer 
 free ; by it slavery was extended to all the Territories, 
 whether they desired it or not, and only when a Terri- 
 tory became a State could it abolish slavery within 
 its limits.^ 
 
 ' For the decision, see 19 Howard 393. See abstract in the 
 Appendix. 
 2 Cf. Johnston, American Political History, ii., p. 169 ff. 
 
Abraham Lincoln 215 
 
 It was the evident intention of the Court to attempt 
 a final solution of the slavery question. The attempts 
 of the Executive and of Congress to effect a per- 
 manent settlement had proved only partially success- 
 ful, and in the mind of the Court, as of the rest of 
 the country, it was most desirable that some final 
 settlement should be reached, so that peace might 
 come again. The folly of the Supreme Court's at- 
 tempt to give final form by judicial decision to the 
 great moral and political question involved soon be- 
 came apparent. It was not only the throwing open 
 of free Territory to slavery that stirred men like 
 Lincoln to determined opposition to the political re- 
 sults of this decision.^ They were equally opposed 
 to the doctrine which would rob the slave of his 
 character as man and condemn him forever to the po- 
 sition of a mere chattel. Lincoln's moral sense rebelled 
 against the idea and the history of his country taught 
 him that the Declaration of Independence meant 
 Avhat it said, and that its " all men are created equal," 
 included negroes as well as whites. And none could 
 deny the presence of free negroes at the time of the 
 adoption of the Constitution or that they had 
 continued to that day. 
 
 Lincoln regarded the Dred Scott decision as the 
 second step in a movement by the South to make the 
 whole country slave; the first was the repeal of 
 the Missouri Compromise by which free Territories 
 were thrown open to slavery, the Dred Scott decision 
 marked a further advance in depriving Congress and 
 the Territories of the right to forbid slavery within 
 their limits; the third and last step he apprehended 
 
 ' Works, ii., 321 ff. 
 
2i6 Story of the Constitution 
 
 would be to throw open to slavery by judicial de- 
 cision or by congressional enactment not only the 
 free Territories but the free States as well.^ 
 
 The possibility of such a culmination to the pro- 
 cess of slavery extension filled him with horror, and 
 he eagerly took advantage of the formation of the 
 new Republican party to be among the first to espouse 
 its principles and to ally himself with the party which 
 its opponents delighted to stigmatize as " black." 
 His position in Illinois and his relation to the party 
 brought him the Republican nomination in 1858 for 
 Senator to contest the seat then filled by Senator 
 Douglas.^ 
 
 The rivalry of Lincoln and Douglas had begun in 
 their early manhood and continued till the election 
 of 1860 ; it was a rivalry in love as well as in politics, 
 in character and disposition as well as in policies 
 of national welfare. Douglas far outstripped his 
 competitor in the early stages of their careers, and 
 while Lincoln was still an unknown country lawyer 
 in central Illinois, Douglas was one of the leaders 
 of the Senate and a figure of national prominence. 
 As a Northern Democrat, Douglas had fathered the 
 Kansas-Nebraska Bill and the repeal of the Missouri 
 Compromise in 1854; he was the author of the doc- 
 trine of " Popular Sovereignty " which asserted for 
 the Territories the right to determine for themselves 
 whether or not slavery should be permitted within 
 their borders; no one espoused more heartily than 
 he the dicta of the Dred Scott decision, though he 
 
 1 Works, iii., 3 ff. 
 
 "Cf. Nicolay and Hay: Abraham Lincoln; A History, ii., 
 135 ff. 
 
Abraham Lincoln '217 
 
 failed to perceive the logical contradiction between 
 that decision and his pet doctrine of "Popular 
 Sovereignty." 
 
 Lincoln, on the other hand, was touched by the 
 rising tide of opinion against the extension of 
 slavery; he was in no sense an abolitionist, for he 
 recognized the constitutional guarantees of slavery 
 as a domestic institution within the States, but he 
 believed in the right and power of Congress to for- 
 bid its presence in the Territories. 
 
 A series of joint debates was arranged between 
 these champions of opposing principles, and the Lin- 
 coln-Douglas Debates of 1858 are second only to the 
 Webster-Hayne Debates in the political annals of 
 our country.^ Lincoln was defeated but in losing 
 the Senatorship he won the Presidency. 
 
 The debates centred around the great question at 
 issue, that of the extension of slavery. Douglas up- 
 held the principle of " Popular Sovereignty " and 
 the Dred Scott decision. Lincoln grasped the incon- 
 sistency of Douglas's position and propounded to him 
 a series of questions the answers to which disclosed 
 the inconsistency and placed Douglas in a dilemma 
 from which he could not extricate himself except at 
 the cost of losing the support either of the North or 
 of the South. The most famous of these questions 
 and the one central to the discussion was in the fol- 
 lowing words : " Can the people of a United States 
 Territory, in any lawful way, against the wishes of 
 any citizen of the United States, exclude slavery 
 from its limits prior to the formation of a State 
 constitution? " To admit that it could, would be 
 1 For the debates, see Works, iii., 200-347, iv., and v., 1-85. 
 
2i8 Story of the Constitution 
 
 to reject the Dred Scott decision and to alienate the 
 South. To deny that it could not, was to demolish 
 his own doctrine of Popular Sovereignty and to lose 
 the support of the North. Douglas chose the former, 
 though he sought to conceal it under the guise of the 
 principle of " unfriendly legislation," which came to 
 be known as the " Freeport heresy." ^ By this, 
 Douglas meant that, though the people of a Territory 
 could not by statute exclude slavery, yet that slavery 
 could not exist in a Territory without friendly legis- 
 lation, legislation of such a character as to call into 
 being the exercise of the police power to protect it. 
 
 It was the answer Lincoln had been seeking; at a 
 conference of Republican leaders the night before 
 the Freeport debate, Lincoln, according to tradition, 
 was urged not to ask this question, for fear he would 
 lose the prize for which he was contending. " I am 
 killing larger game," he said ; " the battle of 1860 is 
 worth a hundred of this." ^ Lincoln was right in 
 his prophecy. The South would never accept for 
 President a man who had proclaimed such a doc- 
 trine. Senator Benjamin of Louisiana, in a speech 
 in the Senate on May 22, 1860, accused Douglas of 
 having broken faith with the South and fitly de- 
 scribed the situation when he said : " The Senator 
 from Illinois faltered. He got the prize for which 
 he faltered; but lo, the prize of his ambition slips 
 from his grasp because of the faltering which he paid 
 as the price for the ignoble." * 
 
 1 For Lincoln's questions, see Works, iii., 273-4, and for 
 Douglas's idea of " unfriendly legislation," iii., 297. 
 
 2 Nicolay and Hay, ii., 160. 
 
 ^ Congressional Globe, first session 36th Congress, 1859-1860, 
 p. 2241. 
 
Abraham Lincoln 219 
 
 The result of these debates made Lincoln a figure 
 of national prominence and the candidate of his party 
 for the Presidency two years later. There could be 
 no mistaking the attitude of Lincoln and of the Ee- 
 publican party toward slavery in this campaign. 
 The issue was clearly stated in the party platform; 
 the defence of the principles of the Declaration of In- 
 dependence, "the maintenance inviolate of the rights 
 of the States, and especially the right of each State 
 to order and control its own domestic institutions 
 according to its own judgment exclusively," as " es- 
 sential to that balance of power on which the 
 perfection and endurance of our political fabric de- 
 pend " ; the condemnation of the new dogma " that 
 the Constitution, of its own force, carries slavery 
 into any or all of the territories of the United States," 
 as " a dangerous political heresy," " revolutionary in 
 its tendency, and subversive of the peace and har- 
 mony of the country," and that " the normal condi- 
 tion of all the territory of the United States is that 
 of freedom." ^ 
 
 Slavery was recognized as a peculiar domestic 
 institution, wholly subject to the control of the 
 individual States within their borders, but equally 
 subject to the control of Congress within the Terri- 
 tories; it was an evil and therefore to be restricted 
 to its present area, that in the course of time it 
 might die out altogether, but so long as any State 
 desired to retain slavery, it might do so free from 
 molestation from the Federal Government. 
 
 In his Cooper Union speech of February 27, 1860, 
 
 1 T. J. McKee, National Conventions and Platforms, pp. 113- 
 114. 
 
220 Story of the Constitution 
 
 Lincoln struck to the heart of the differences between 
 the sections.^ It was the nationalization of slavery. 
 " Holding as they [the Southern people] do that 
 slavery is morally right and socially elevating, they 
 cannot cease to demand a full national recognition 
 of it, as a legal right and a social blessing. Nor 
 can we justifiably withhold this on any ground save 
 our conviction that slavery is wrong." " Wrong as 
 we think slavery is, we can yet afford to let it alone 
 where it is, because that much is due to the necessity 
 arising from its actual presence in the nation." The 
 fight must be made against the extension of slavery; 
 free soil must remain free in the Territories lest it 
 should cease to be free in the States. 
 
 The period from the election in November to the 
 inauguration in March was one of great doubt and 
 uncertainty. South Carolina waited only long enough 
 to hear the result before setting in motion the ma- 
 chinery to effect Secession, and on December 20th, 
 the Convention proclaimed the Ordinance of Seces- 
 sion,2 whereby the old ties were severed and the Union 
 destroyed so far as South Carolina could effect it. 
 Before the 4th of March, seven States had seceded 
 and had established the Confederate States of 
 America, had chosen officials, had made preparations 
 for organizing an army and navy, had seized the prop- 
 erty of the United States within their limits and 
 were offering to treat for a peaceable separation.^ 
 
 The practical question assumed a different form 
 with the completion of Secession and the commence- 
 
 1 Works, v., 293 ff. 
 
 2 See Appendix. 
 
 ^ Cf. 3. W. Burgess, The Civil War and the Constitution. 
 
Abraham Lincoln 221 
 
 ment of hostilities. It was no longer the extension 
 of slavery; it was the preservation of the Union. 
 President Buchanan had been weak and vacillating; 
 he had denied, in his message of December, 1860,^ 
 the right of a State to secede, but at the same time 
 had as emphatically denied the right of the Federal 
 Government to employ force against any State that 
 might attempt Secession. Driven by the aggressive 
 policy of the Secessionists, he had been obliged later 
 to take a firmer stand with respect to the power of 
 the Union to execute its laws and to retain control 
 of its property even at the risk of war. 
 
 Lincoln's inaugural address was unwavering on the 
 question of the extension of slavery 2; there must be no 
 compromise on the question of its restriction, but 
 equally must there be no encroachment upon its ex- 
 istence within the States. But slavery for the moment 
 had ceased to be the great issue. It had yielded to 
 Secession. Could a State lawfully withdraw from the 
 Union? Was the nature of the Union such that it 
 could not prevent its own destruction? Were the 
 States joined in mere alliance or in the indissoluble 
 bond of a Federal State? This was the question, 
 agitated since the foundation of the Republic, which 
 at last was to be put to the test of war. The threat 
 of three quarters of a century had at length become 
 a reality! 
 
 Lincoln's attitude toward Secession was clear from 
 the start, and the words of his first inaugural char- 
 acterized it as rebellion and revolution. The Union 
 
 1 Messages and Papers of the Presidents, v., 635 ff. Cf. Bur- 
 gess, The Civil War and the Constitution, i., 82 ff. 
 
 2 Works, vi., 169 ff. 
 
222 Story of the Constitution 
 
 of the States he regarded as perpetual. Never had 
 any governmeiit had a provision for its own destruc- 
 tion embodied in its organic law, and, even if the 
 Constitution were a contract, it could not peaceably 
 be dissolved without the consent of all. " One party 
 to a contract may violate it^break it, so to speak; 
 but does it not require all to lawfully rescind it? " ^ 
 But to Lincoln's mind the Constitution was not a 
 contract by which sovereign States had been leagued 
 together. It was only the last step in the process of 
 union which had begun in 1774. " The Union is 
 much older than the Constitution," he asserted, and 
 one of the declared objects of the establishment of 
 the Constitution was " to form a more perfect Union." 
 The same opinion he elaborated in his first message 
 to Congress in language that is familiar to all. " The 
 States have their status in the Union, and they have 
 no other legal status. If they break from this, they 
 can only do so against law and by revolution. The 
 Union, and not themselves separately, procured their 
 independence and their liberty . . . The Union is 
 older than any of the States, and, in fact, it created 
 them as States." ^ 
 
 The conclusions that Lincoln drew from these 
 premises are evident. Secession was a sophism, rest- 
 ing upon the fallacy that there was at some former 
 time a number of sovereign States, a number of politi- 
 cal communities without a political superior, which 
 mutually surrendered a portion of their rights, 
 but not their sovereignty, and having retained this, 
 might, therefore, legally withdraw from the Union 
 
 ' Works, vi., 174. 
 2 Ibid., vi., 315. 
 
Abraham Lincoln 223 
 
 by resuming the powers granted to it. Lincoln's 
 theory left no ground for the legal dissolution of the 
 Union. If the States never had any existence out- 
 side the Union, if " the Union is older than any of 
 the States, and, in fact, . . . created them as States," 
 then they can have rights outside of it only by de- 
 stroying it, by revolution, by rebellion. Furthermore 
 it follows that Secession Ordinances are null and 
 void, and have no legal effect whatever upon the 
 relation of a State to the Union. That relation per- 
 sists so long as the Union continues, and the de- 
 struction of the Union must come from violence and 
 not from law, for " no government proper ever had 
 a provision in its organic law for its own termina- 
 tion." Secession was rebellion and must be put 
 down with all the power of a government fighting 
 for its life.^ 
 
 The Union was not only historically and legally 
 an indissoluble one, but also " physically speaking, 
 we cannot separate." It was not possible to " build 
 an impassable wall " between the sections ; they could 
 not, like divorcees, " go out of the presence and 
 beyond the reach of each other " ; they must remain 
 face to face. 
 
 Thus bluntly did Lincoln make known his attitude 
 toward the seceding States. They were still in the 
 Union and could not get out of it till they had suc- 
 cessfully resisted its efforts to execute its laws within 
 their boundaries, till the right of revolution had once 
 more been appealed to with success. The duty of a 
 President holding such views was clear; the use of 
 the military and naval forces of the Union to secure 
 
 1 Cf. Johnston, op. cit., ii., 280 ff. The Secession Movement. 
 
2 24 Story of the Constitution 
 
 obedience to its laws was imperative ; the calling into 
 activity of the war-power became his most solemn 
 duty. 
 
 The way in which Lincoln met Secession and his 
 appeal for the preservation of the Union thrilled the 
 masses of the North with a patriotic zeal, deep and 
 far reaching. The precious heritage of Union was 
 endangered, the great experiment of republican gov- 
 ernment was threatened with failure, — had failed 
 many said, — and ancient liberties and recent great- 
 ness could be preserved only by the preservation of 
 the Union. For the time being slavery and all its 
 vexed problems that had held the boards for nearly 
 half a century, sank into the background; a greater 
 and a nobler issue than the extension of slavery was 
 to be decided ; the single sentiment of Union filled the 
 minds of the North to the exclusion of all else. Only 
 a few extremists still talked of abolition or of 
 peaceable dissolution. 
 
 The exercise of the war powers by the Executive 
 led almost at once to a temporary military dictator- 
 ship. Under the pressure of circumstances and the 
 plea of necessity, the President, first on his own re- 
 sponsibility and then with the sanction of Congress, 
 assumed the exercise of powers which destroyed on 
 the one hand the old balance between the States and 
 the nation and between the departments of govern- 
 ment, and on the other overstepped almost all the 
 guarantees of liberty to the individual, while the 
 theory of delegated powers lost all real importance 
 in the presence of national peril. 
 
 This dictatorship enabled Lincoln to perform his 
 first great service to the Constitution, that of pre- 
 
Abraham Lincoln 225 
 
 serving its very existence, of settling in favor of the 
 Union the divergent views which reached back to 
 the Constitutional Convention, and of making of us 
 for all time a sovereign nation, a single political 
 people. 
 
 Though slavery had been pushed aside at the out- 
 break of war, it could not long remain in the back- 
 ground. It daily became more evident that the 
 fundamentally different views of North and South 
 on all manner of topics were somehow or other rooted 
 in slavery. It was clear that the nation must be 
 wholly free or wholly slave before there could be the 
 homogeneity of thought and feeling necessary for a 
 true Union. Nor was it less clear that the success 
 of the war was intimately connected with the con- 
 tinued existence of slavery. So long as slavery 
 continued, it was possible for the South to put its 
 maximum fighting strength in the field and depend 
 for its support upon the produce of slave labor. 
 Likewise the North was estopped by the existence of 
 the institution from employing the blacks in its mili- 
 tary forces. All these considerations bore with great 
 weight upon Lincoln's attitude as expressed in his 
 inaugural. It might be true that so long as peace 
 existed, the Federal Government could not touch 
 slavery in the States, but with the outbreak of the 
 war, new powers not previously contemplated came 
 into play. The doctrine of the " war-powers " of Con- 
 gress and the Executive received a rapid and none 
 too careful development.^ Men did not scrutinize 
 too closely the constitutionality of measures whose 
 
 ^ Cf. W. A. Dunning, Essays on the Civil War and Recon- 
 struction, p. 1 if, 
 
 IS 
 
2 26 Story of the Constitution 
 
 object was the maintenance of the Constitution it- 
 self. Lincoln gave expression to this attitude in 
 characteristic fashion in speaking of the suspension 
 of the writ of Habeas Corpus by Executive order 
 when he asked : " Are all the laws but one to go 
 unexecuted, and the government itself to go to pieces 
 lest that one be violated? " ^ 
 
 Emancipation by proclamation of the President 
 was the result of this growth of powers.^ Avowedly 
 a war measure, it was made applicable only to those 
 districts in revolt on the first day of January, 1863. 
 The war for the Union gained great moral strength 
 when it became also a war for liberation, and the 
 Emancipation Proclamation takes rank, along with 
 the Declaration of Independence, as the second great 
 charter of American freedom. As the latter was in- 
 sufficient to secure the blessings of the liberty it 
 proclaimed and needed to be supplemented by an in- 
 strument of government giving form and stability to 
 its ideals, so the Emancipation Proclamation, bring- 
 ing freedom to new millions, needed to be supple- 
 mented by constitutional amendments to give it 
 lasting efficiency. Lincoln did not live to see any 
 but the first of the new amendments, the thirteenth, 
 take form ; by it slavery and involuntary servitude, ex- 
 cept as a punishment for crime, were forever banished 
 from the land. 
 
 Two great ideas filled Lincoln's mind: Union and 
 Liberty. But the Union was more precious than the 
 liberty of the slaves. Fiercely as he hated slavery, 
 
 1 Works, vi., 309. 
 
 ^ Ibid., viii., 161, and Johnston, op. cit., ii., 389 ff. Emanci- 
 pation. For the text, see the Appendix. 
 
Abraham Lincoln 227 
 
 he would nevertheless save the Union at the cost of 
 its continued existence. As slavery was the price of 
 the first acceptance of the Constitution, so he was 
 willing to make it a part of the second bargain for 
 its preservation. But it was not to be. The South 
 refused all offers of guarantees for its inviolability 
 within the borders of any State. The slaveholding 
 States seemed bent on nothing short of rule or ruin, 
 on nothing less than the complete acceptance of 
 slavery everywhere or a violent dissolution of the 
 Union. When this became evident, Lincoln seized 
 the opportunity to save the Union by destroying 
 slavery. 
 
 Lincoln's view of Reconstruction followed nat- 
 urally from his belief in the indissoluble character 
 of the Union.^ The States could not possibly with- 
 draw from the Union. The rebellion was the work 
 of certain persons who had seized control of the 
 State governments and had unlawfully made use 
 of them for the purposes of the rebellion. So soon, 
 then, as the Federal Government should reassert its 
 authority, so soon as the rebellion should be put down 
 and loyal governments be set up, the old relations 
 would likewise be re-established. The States had 
 never been out of the Union; they could not, there- 
 fore, be brought back into it. 
 
 In accordance with this idea Lincoln proclaimed 
 the so-called " ten per cent, plan," by which it was 
 provided that any State whose citizens had been in 
 rebellion, might be reconstructed as loyal, when a 
 number equal to ten per cent, of those who had voted 
 in the election of 1860 should take the oath of 
 
 1 Cf. C. H. McCarthy, Lincoln's Plan of Reconstruction. 
 
2 28 Story of the Constitution 
 
 allegiance to the United States, and should proceed 
 to elect state officials and national representatives.^ 
 A government so constituted Lincoln declared would 
 be recognized by the Executive as a member of the 
 Union, and several States were so constituted and 
 recognized. 
 
 The difficulties of Eeconstruction, however, were 
 not to be settled in any such simple fashion. Con- 
 gress had its own notions about the method of pro- 
 cedure which were radically different from those of 
 President Lincoln, and as the Constitution gives each 
 House the exclusive right of judging of the qualifica- 
 tions of its members, mere Executive recognition of 
 a reconstructed State would not be sufficient to rein- 
 state it completely in its old position; it might still 
 be kept out of its representation in the legislative 
 councils of the nation. 
 
 How this difference of opinion between the Presi- 
 dent and Congress might have been settled but for 
 the assassination of Lincoln, it is impossible to say, 
 but surely it would have been settled in some way 
 that would have spared the South those bitter years 
 of political debauchery, that would have spared our 
 country's history the darkest blot upon its record 
 for political sagacity — " Reconstruction." 
 
 1 Works, ix., 218 ff. 
 
XI 
 
 Thaddeus Stevens. Growth through 
 Reconstruction 
 
 229 
 
THADDEUS STEVENS 
 
 1793. April 4. Born in Danville, Vt. 
 
 1814. Graduated from Dartmouth College. 
 
 Removed to Pennsylvania. Studied law. 
 1829. Supported anti-Masonic party. 
 
 1833-35. ) 
 1837-42 1 Representative in Pennsylvania Legislature. 
 
 1838. Member of State Constitutional Convention. 
 
 1842-49. Practised law in Lancaster. 
 
 1849-53. Representative in Congress. 
 
 1859-68. Representative in Congress. 
 
 1861. Chairman of Committee on Ways and Means. 
 
 1866. Chairman of House Committee on Reconstruc- 
 
 tion. 
 
 1868. Chairman of Committee of Impeachment of 
 
 Andrew Johnson. 
 Aug. 11. Died in Washington. 
 
 S30 
 
XI 
 
 Thaddeus Stevens, Growth through 
 Reconstruction 
 
 WITH the death of Lincoln and the accession of 
 Andrew Johnson to the Presidency the period 
 of Reconstruction may be said to have begun. The 
 new President declared his intention of following out 
 the plan laid down by his predecessor. That plan 
 had not met with the approval of Congress even when 
 advocated by Lincoln ^ ; much less would it do so 
 when tried by a man of Johnson's antecedents and 
 character. Within the space of a few weeks after he 
 took the oath of office, Johnson and Congress were 
 in bitter opposition. Johnson at first had breathed 
 out fire and slaughter against the " rebels " who must 
 be taught, he said, what it meant to be traitors. 
 Soon, however, he began to court the favor of the 
 South and in proportion as his suit prospered, the 
 fear of the radical Republicans was aroused that, if 
 the seceded States should be restored on the Lincoln- 
 Johnson plan, with no further guarantees of their 
 good conduct in the future or of the security of the 
 freedmen, the Democrats might easily gain control 
 
 ^ Cf. 3. W. Burgess, Reconstruction and the Constitution, p. X5, 
 
 231 
 
232 Story of the Constitution 
 
 of Congress and the fruits of victory be lost both to 
 the nation and to the party. 
 
 The leader of the radicals and of Congress in the 
 fight with Johnson was Thaddeus Stevens of Penn- 
 sylvania. At the extra session of Congress which 
 met on July 4, 1861, Stevens was appointed Chair- 
 man of the Committee on Ways and Means. This 
 Committee performed at that time the duties now 
 performed by the various appropriation committees 
 as well, so that the enormous task devolved upon 
 Stevens both of providing revenue and of determining 
 how it should be spent. This position he filled 
 throughout the war and became, in the words of 
 Blaine, " the natural leader who assumed his place 
 by common consent." 
 
 Stevens was born in Vermont in 1793 and was 
 therefore at the outbreak of the war at the advanced 
 age of sixty-eight.^ After graduating from Dart- 
 mouth College in 1814 he had moved to Pennsylvania, 
 first to teach school at York and then to practise 
 law at Gettysburg and Lancaster. For fifteen years 
 he followed with success the practice of his profes- 
 sion without evincing any particular interest in 
 politics and only in 1833, at the age of forty, 
 did he receive his first election. It was to the Penn- 
 sylvania House of Kepresentatives in which he con- 
 tinued to serve until 1842. During this period 
 Stevens established his ability to lead a legislative 
 body by his caustic wit and brilliant oratory. His 
 speech in 1835 in favor of free schools was a re- 
 markable effort which changed a hostile majority, not 
 only in the House but also in the Senate, the mem- 
 
 1 Lives by McCall and Callender. 
 
Thaddeus Stevens 233 
 
 bers of which had crowded into the House to hear 
 him, and which firmly established the great public 
 school system of the State.^ 
 
 During these years his views on slavery took shape 
 in their final form. Living near the dividing line 
 between the free and the slave States, he was a con- 
 stant witness to the struggles of the unhappy slaves 
 to escape from bondage and to the action of the 
 Fugitive Slave Law in dragging them back into cap- 
 tivity. As a lawyer he was always ready to lend his 
 aid in their defence, and as a member of the Consti- 
 tutional Convention in 1838, he opposed all dis- 
 criminations against any man on account of his 
 color and refused to sign the proposed constitution 
 because it limited the right of suffrage to " white 
 citizens." ^ At about the same time Stevens attended 
 a convention at Harrisburg which proposed to save 
 the Union by repressing the anti-slavery agitation. 
 His views were radically opposed to such an attitude, 
 and by his ridicule and his arguments he drove the 
 convention into an adjournment without action. 
 
 In 1849 Stevens was elected a member of the na- 
 tional House of Representatives, at an age when most 
 men are beginning to contemplate the end of their 
 active careers. His real career, however, was not yet 
 beginning, for after serving two terms he retired from 
 Congress, as it then seemed for good, and did not 
 return till six years later. When first elected to 
 Congress, Stevens had at once assumed the leader- 
 ship of the small band of Free-Soilers and extreme 
 Whigs, and in the slavery contests during his two 
 
 1 S. W. McCall, Thaddeus Stevens, p. 37. 
 ■'Ihid., p. 48. 
 
234 Story of the Constitution 
 
 terms, he was unwavering in his hostility to the in- 
 stitution. The close of the Mexican War and the 
 acquisition of new territory brought the question of 
 the extension of slavery to the front as it had not 
 been since 1820. California quickly filled up with 
 a non-slaveholding population and immediately 
 adopted a constitution forbidding slavery and asked 
 for admission as a free State. If California should 
 be admitted as a free State, the hope of the slave 
 States to profit by the war would be greatly les- 
 sened. The fairest portion of the newly acquired 
 territory would be lost to them. It is small wonder, 
 then, that the admission of California was so vigor- 
 ously opposed. 
 
 An ever present cause of irritation between the 
 sections of the country was the Fugitive Slave Law 
 by which " persons held to service or labor " were 
 to be returned to those to whom they owed the serv- 
 ice or labor. In the North it was detested and its 
 enforcement was hindered in every lawful and in 
 some unlawful ways. Any other course seemed to 
 imply complicity in the horrors of slavery, a newly 
 awakened moral sensitiveness rebelled at the consti- 
 tutional safeguards of the evil, and personal liberty 
 laws abounded. In the South, on the other hand, the 
 idea that slavery was a " positive good " had be- 
 come very generally accepted and this positive good 
 was guaranteed to them by the solemn compact of 
 the Constitution itself. Every failure to return a 
 fugitive slave was not only the occasion of direct 
 financial loss to the owner, but also was a violation 
 of the most sacred obligation. The attitude of the 
 North toward slavery bore infinitely more hardly 
 
Thaddeus Stevens 235 
 
 upon the South than did the actual loss of the slaves. 
 It was a constant accusation against their whole 
 ethical and moral system. It was like a goad in 
 the flanks that finally drove them into an unmanage- 
 able revolt. 
 
 When Congress met in December, 1860, the revolt 
 was already in progress; Secession conventions had 
 been summoned in more than one Southern State and 
 the Senators from South Carolina had resigned their 
 seats. President Buchanan, in his message to Con- 
 gress on the day of its assembling, combined a rebuke 
 for " the long continued and intemperate interference 
 of the Northern people with the question of slavery," ^ 
 and for the agitation which had produced its " malign 
 influence upon the slaves, and inspired them with 
 vague notions of freedom," with a justiflcation of the 
 action of the South that came as from the lips of 
 one of them. Furthermore he asserted his belief that 
 Congress was powerless to prevent the dissolution of 
 the Union, that " the sword was not placed in their 
 hands to preserve it by force." In Congress itself 
 the old spirit of compromise still ruled. Both Sen- 
 ate and House appointed committees of reconciliation 
 and the extent to which the North was willing to go 
 to preserve the Union seems incredible in view of 
 the victory of the Republican party at the poUs.^ 
 Repeal of personal liberty laws, revision of the Fugi- 
 tive Slave Law to the point of endangering the 
 liberty of free white men, and an amendment to the 
 Constitution forever removing the possibility of an 
 amendment which would interfere with slavery in the 
 
 ^Messages and Papers of the Presidents, v., 635 ff. 
 2 Burgess, op. cit., i., 96; and McCall, op. cit., p. 121 ff. 
 
236 Story of the Constitution 
 
 States unless such amendment should originate 
 in a slave State and be ratified by every State 
 in the Union, were the concessions proposed 
 but without avail. Only on the question of 
 the extension of slavery did the Republicans stand 
 firm. 
 
 The adoption of such measures as these would have 
 riveted the chains of slavery till the millennium if the 
 Constitution could control. The folly was that men 
 did not see that the time for compromise was past; 
 that former compromises had postponed only to in- 
 crease the evils they sought to cure; that the life of 
 the nation could not be regulated by the law, no 
 matter how solemnly compacted, if the life of the 
 nation be at stake. Secession was already full grown. 
 The Confederacy was an established fact. A Con- 
 stitution had been proposed, Jefferson Davis elected 
 President, and a Congress assembled before the com- 
 promise measures passed the House, and the sepa- 
 ration had been declared to be " perfect, complete, 
 and perpetual." 
 
 Thaddeus Stevens desired no compromise; the time 
 had come to determine whether or not Secession was 
 a lawful act. If so, he said, " then the Union is 
 not worth preserving for a single day." But he 
 utterly repudiated the right of a State to withdraw 
 and exulted in the election of Lincoln, though he 
 should " see this government crumble into a thou- 
 sand atoms." His opposition to compromise had no 
 effect and the man who should lead Congress through 
 the crisis " sat by, protesting and threatening, waiting 
 for his time to come." ^ 
 
 1 McCall, p. 124. 
 
Thaddeus Stevens 237 
 
 That time was not long delayed. Lincoln had 
 summoned Congress to meet on July 4th. War had 
 begun with the firing on Fort Sumter, and when Con- 
 gress met there was urgent need of both men and 
 money. Stevens, as chairman of the Ways and 
 Means Committee, was supreme in all financial legis- 
 lation. From this point of vantage, he was soon 
 recognized as the leader in Congress and more and 
 more it followed his guidance. With the death of 
 Lincoln, Stevens's infiuence, which had been decisive 
 in legislation, became dominant. During Eecon- 
 struction, Stevens so long as he lived, was dictator 
 in the House and leader of his party. 
 
 By disposition and by training Stevens was a 
 radical. There was no element of compromise in 
 him and from the first he held a consistent theory 
 regarding the position of the Southern States and 
 the treatment that should be accorded them.^ That 
 theory is in the main well known. The seceding 
 States were in rebellion and their supporters should 
 be dealt with as rebels. The right of revolution was 
 comprehensible to his mind, but the right of Secession 
 was abhorrent. The Union must be preserved at any 
 cost, nor need too great thought be bestowed upon the 
 strict legality of the means employed. The powers 
 of the Federal Government, he argued, were limited 
 only by the necessities of the occasion when the main- 
 tenance of its own existence was at stake. So eager 
 was he to render support to the President, that, within 
 a week after Congress assembled, the money asked 
 for by the Administration had been granted, and 
 within a few days more the necessary bills for rais- 
 
 1 McCall, p. 191. 
 
238 Story of the Constitution 
 
 ing the enormous sums demanded had been introduced 
 and passed. 
 
 The " Crittenden Resolution " which declared that 
 " the war is not waged in any spirit of oppression, 
 or for any purpose of conquest or subjugation," or 
 to interfere with " the rights or established institu- 
 tions " of the seceded States, but to " preserve the 
 dignity, equality, and rights of the several States 
 unimpaired," passed both Senate and House with 
 scarcely a dissenting Republican vote save that of 
 Stevens.^ The nation, he thought, should not hamper 
 itself in any particular with reference to the conduct 
 of the war or the results which might flow from it. 
 By the opening of the next session the principle of the 
 resolution had been so far violated, that the House 
 adopted a motion of Stevens to lay it on the table 
 when it was proposed to reaffirm it. 
 
 In this same session a bill was introduced to con- 
 fiscate the property " used for insurrectionary pur- 
 poses " and to free the slaves who were employed in 
 any military or naval service against the Govern- 
 ment. Both proposals were much to Stevens's liking. 
 The object of the war was " to subdue the rebels," and 
 confiscation of " rebel " property found favor with 
 him both as a measure of war and as a means of 
 punishment. Stevens has been called vindictive, but 
 his vindictiveness was not blood-thirsty; he would 
 punish by taking away property, but not life. He 
 would weaken the enemy by depriving him of the 
 means of support. The laws of war should govern 
 in a rebellion. The rights of the seceded States un- 
 der the Constitution had been lost by their Secession 
 1 McCall, p. 148. 
 
Thaddeus Stevens 239 
 
 and the constitutional guarantees of slavery de- 
 stroyed. This was more advanced ground than the 
 House was yet willing to take and the bill was re- 
 jected; it was not long, however, till Congress as- 
 sumed the position now advocated by Stevens.^ 
 
 Stevens was one of the few members of Congress 
 who did not seek to justify every step by some con- 
 struction of the Constitution, however strained or 
 fanciful. He early recognized the fact that no pro- 
 vision for a civil war had been incorporated in the 
 Constitution, and that in the war in progress the 
 United States was compelled to fight for existence. 
 In that struggle paper barriers must be swept away. 
 Secession had destroyed the Constitution in the se- 
 ceding States and the great task of the Union was 
 to restore its sway over them. He would not be 
 scrupulous about the constitutionality of the means 
 when the end was the establishment of the Consti- 
 tution. He recognized, as did few others, that the 
 time for fine-spun theories had passed, and that the 
 need for success was greater than that for legality 
 of procedure. 
 
 For two generations the American people had been 
 blind worshippers of the Constitution. They had 
 thought to find in it a solution for all the political 
 problems that confronted them, if only their worship 
 were blind enough, with the result that metaphysics 
 had taken the place of common sense, and the best 
 intellects of the country had been devoted to the 
 barren attempt to determine by subtle processes of 
 constitutional construction the course of mighty 
 moral and political forces. Stevens perceived this 
 
 1 McCall, pp. 149-50. 
 
240 Story of the Constitution 
 
 clearly and with his characteristic directness, broke 
 away from the mental bondage of the times and pro- 
 claimed a doctrine of force. The Constitution had 
 been exalted above the Union. He sought to restore 
 it to its proper place, and in the attempt he would 
 be guided by the needs of the situation rather than 
 be hampered by constitutional doctrines. 
 
 Illustrations of Stevens's attitude toward the Con- 
 stitution are abundant throughout the war. At its 
 very inception he advocated the issue of legal tender 
 notes as being within the province of the Federal 
 Government.^ Such a power had not been expressly 
 enumerated in the Constitution, but every power 
 necessary to carry out the granted powers had been 
 conferred upon it. In the Constitutional Conven- 
 tion, with respect to this power it had been left " to 
 the exigencies of the times to determine its necessity," 
 and Congress had the power to judge whether or 
 not this necessity had arisen. 
 
 An even clearer illustration may be seen in his 
 attitude toward the admission of the new State of 
 West Virginia.^ This mountainous district of " The 
 Old Dominion " did not share with the rest of the 
 State its feeling toward Secession. It proceeded, 
 therefore, to organize a State government and to elect 
 representatives to Congress. That so small a portion 
 of the people of Virginia should claim to represent 
 the whole State was absurd, so it was determined to 
 apply for admission as a new State. Here, however, 
 an apparently insuperable obstacle was encountered, 
 for the Constitution provides that no new States 
 
 1 McCall, p. 152 ff. 
 
 2 Ihid., p. 190 if. 
 
Thaddeus Stevens 241 
 
 shall be formed from the territory of an old one, 
 without the latter's consent. Many were not unwill- 
 ing to argue that the Legislature of the new State 
 was the Legislature of Virginia, and so could give 
 the necessary consent to its own dismemberment. 
 Such a viewpoint Stevens rejected as ridiculous on 
 the face of it. He wished it plainly understood that 
 he was not " being deluded by the idea that we are 
 admitting this State in pursuance of any provision 
 of the Constitution." It was preposterous to main- 
 tain that two hundred thousand people, segregated 
 in a single district, could represent more than a 
 million in the rest of the State, who were them- 
 selves organized in their own form of government. 
 The State of Virginia, therefore, had never given its 
 consent to the separation. This was no objection to 
 Stevens's mind to admitting the new State, for in 
 accordance with his general view, the Constitution 
 had ceased to be applicable to the seceded States, 
 and therefore the observation of its provisions with 
 respect to them was unnecessary. 
 
 This was his view of the constitutional status of 
 the seceded States from the beginning of the war 
 to his death.^ It was the view consistently advo- 
 cated by him in the days of Reconstruction and the 
 view finally adopted by the nation in its legislation.^ 
 The Confederate States, he asserted, had established 
 a power which the United States had recognized 
 by the proclamation of a blockade of the Southern 
 
 1 Johnston, American Political History, ii., 440. " From the 
 outbreak of the Rebellion until the end of reconstruction but two 
 parties consistently maintained a consistent theory, the Demo- 
 cratic party and Thaddeus Stevens." 
 
 2 McCall, op. ait., p. 261 and p. 274. 
 
242 Story of the Constitution 
 
 ports; the Constitution, therefore, had not the slight- 
 est application to them, nor its obligations the slight- 
 est effect upon them ; likewise its protection no longer 
 extended to them. In short the relations of the two 
 parties to this civil war could not be regulated by 
 the law of the land but by the law of nations; the 
 parties, he declared, " stand in precisely the same 
 predicament as two nations who engage in a contest," 
 and this principle he applied to Eeconstruction with 
 the result that he was brought into immediate con- 
 flict with the theories of Lincoln and Johnson. 
 
 In his first inaugural Lincoln had declared that 
 " in contemplation of universal law and of the Con- 
 stitution, the Union of these States is perpetual " ^ ; 
 and in the last speech he ever made, one on Eecon- 
 struction on April 11, 1865, while avoiding the 
 theoretical question as to whether the seceded States 
 had ever been out of the Union, he took the position 
 that they were out of their proper practical relation 
 with the Union, and that " the sole object of the 
 government, civil and military, in regard to those 
 States is to again get them into that proper practical 
 relation." ^ 
 
 With such a view Stevens was utterly out of sym- 
 pathy and his hostility to the theory of Lincoln, as 
 • Johnson attempted to carry it out, was bitter and 
 determined. Lincoln's plan of Eeconstruction was 
 simple in the extreme and rested upon the position 
 that the States as such could not secede; that what 
 had taken place was that certain citizens of the se- 
 ceded States were in insurrection against the United 
 
 1 Works, vi., 169. 
 
 2 Ibid. 
 
Thaddeus Stevens 243 
 
 States, and in carrying out their plans had gotten 
 possession of the State governments. All that was 
 necessary to reconstruct them was to restore the gov- 
 ernments to the hands of loyal citizens. Lincoln 
 perceived that such a Reconstruction would be 
 limited to the establishment and recognition of such 
 governments by the Executive. Congress must still 
 determine whether or not the representatives from 
 these reconstructed States should be admitted to its 
 halls. 
 
 The question of Reconstruction had not become 
 acute when Lincoln was assassinated. The whole 
 strength of the nation had been directed towards the 
 successful completion of the military struggle. With 
 Lee's surrender at Appomattox, the Confederacy was 
 practically at an end, and President Johnson was at 
 once confronted with the settlement of this vexed 
 question : a settlement that had of necessity been 
 postponed till the close of the war. Serious con- 
 sideration of the question, however, had been in 
 progress during the course of the contest. In fact 
 Congress and the President had come to a deadlock 
 on the subject in 1863. 
 
 Stevens had early arrived at the conclusion which 
 Congress now proceeded to enforce in opposition to 
 the plan of the President. If the rights of the se- 
 ceding States had been destroyed, they were, at the 
 conclusion of the war, " conquered provinces," and 
 it would rest with the conqueror to determine upon 
 what conditions they might be restored to the enjoy- 
 ment of those rights. 
 
 Under the plan of Reconstruction which President 
 Johnson promulgated within six weeks after his in- 
 
244 Story of the Constitution 
 
 auguration, which was substantially Lincoln's plan, 
 the Southern States rapidly amended their consti- 
 tutions so as to bring them into harmony with the 
 new conditions, and in a short time their Legislatures 
 were in session and their representatives to Congress 
 chosen. 
 
 Had the Southern States been content to let the 
 negro alone, all might have gone well, but they at 
 once began to pass laws discriminating against the 
 freedmen.'^ These laws were of such a character as 
 to arouse the fear in the North that the negroes were 
 being virtually reinslaved and that the fruits of vic- 
 tory were in grave danger of being lost. Emanci- 
 pation was about to be robbed of its efficacy through 
 the action of the newly erected State governments, 
 and a profound distrust of the President and his 
 policy was excited in the North because of his leni- 
 ency toward the South. In proportion as he was 
 conservative, Congress became radical. The opinion 
 rapidly gained ground that the freedmen must be 
 armed with the ballot to protect themselves and to 
 continue the Republican party in power.^ Equally 
 rapidly the Johnson plan of Reconstruction was dis- 
 credited with Congress. The way was opened for 
 radical action which was destined to bring the Presi- 
 dent to the bar of the Senate and to subject the 
 South to years of humiliation and suffering. 
 
 The spirit of the radical reaction was Thaddeus 
 Stevens; aged and infirm, with body bent under the 
 years of struggle so that at times he had to be car- 
 ried into the House, he still retained a strength of 
 
 1 Burgess, Civil War and Reconstruction, p. 44. 
 
 2 Johnston, op. cit., ii., 447. 
 
Thaddeus Stevens 245 
 
 will, clearness of purpose, and keenness of wit that 
 made him dictator of the House and master of the 
 radical sentiment of the country. 
 
 Immediately upon the assembling of Congress in 
 December, 1865, Stevens proposed the appointment 
 of a committee composed of nine Eepresentatives 
 and six Senators to investigate the conditions in the 
 South and " report whether they or any of them are 
 entitled to be represented in either House of Con- 
 gress." Stevens was made House Chairman of the 
 Committee On Reconstruction and from this time to 
 his death, in 1868, he devoted his chief efforts to bring 
 about Eeconstruction in accordance with his own 
 views. ^ 
 
 Whether the States were within or without the 
 Union, he was firmly convinced that Reconstruction 
 could not take place by Executive action alone, but 
 that it must be a concurrent act of the President and 
 of Congress. The Reconstruction that had already 
 taken place by Executive action was, therefore, in- 
 valid, unless it should receive the sanction of Con- 
 gress. If any hope ever existed that Congress would 
 concur in the Lincoln-Johnson plan, it vanished in 
 the face of Johnson's utter disregard of Congress, his 
 denunciation of the Reconstruction Committee, and 
 his egotistical belief in himself as the leader of the 
 people and defender of the Constitution. With an over- 
 whelming majority at his back, Stevens was able to 
 carry his measures over the President's veto, and in 
 a short time the Freedman's Bureau Bill and the 
 Civil Rights Bill had become law in this manner. 
 
 In the same session of Congress Stevens intro- 
 
 iMcCall, op. cit., 258; and Burgess, op. dt., 57 ff. 
 
246 Story of the Constitution 
 
 duced into the House the Fourteenth Amendment for 
 submission to the States for adoption. The Thir- 
 teenth Amendment, abolishing slavery, had already 
 been adopted and had found no stronger advocate 
 than Thaddeus Stevens. But the Thirteenth Amend- 
 ment seemed insufficient to furnish protection to 
 freedmen in their civil rights, and hence the need 
 of the Fourteenth Amendment, establishing their 
 citizenship and guaranteeing them against the abridg- 
 ment of their " privileges or immunities as citizens 
 of the United States " ; against the deprivation " of 
 life, liberty, or property, without due process of law," 
 and affording to all " the equal protection of the 
 laws." Representation was to be apportioned ac- 
 cording to the population, but should be reduced in 
 proportion as the right to vote was denied to any 
 male citizen twenty-one years of age, except as a 
 punishment for crime. A disability, that could be 
 removed by a two-thirds vote of Congress, was placed 
 upon all who had held office before the war, had 
 taken an oath to support the Constitution of the 
 United States, and had subsequently engaged in the 
 rebellion against the Union.^ The validity of the na- 
 tional debt was established, and payment of all 
 debts incurred " in aid of insurrection or rebellion 
 against the United States, or any claim for the loss 
 or emancipation of any slave " was forever forbidden. 
 
 At the same time a bill was introduced by Stevens 
 providing that when the Fourteenth Amendment had 
 become a part of the Constitution and had been rati- 
 fied by " any State lately in rebellion," and such State 
 should have adopted a constitution and laws in 
 
 1 Cf. Burgess, op. cit, p. 78. 
 
Thaddeus Stevens 247 
 
 accordance therewith, it should be admitted to repre- 
 sentation in Congress. The bill, however, was not 
 acted upon and before the opening of the next ses- 
 sion, Johnson had disgraced himself " swinging 
 around the circle," ^ the congressional elections had 
 gone overwhelmingly against him, and his cause was 
 lost. The radical sentiment was on the increase and 
 when Congress met in December, Stevens had nothing 
 to fear from the President's veto. He was in com- 
 plete control of the situation and immediately began 
 to carry out in legislation the theory respecting the 
 seceded States that he had advocated since Lincoln 
 reconstructed Louisiana on the ten per cent. plan. 
 The " conquered province " theory was triumphantly 
 carried out, and Reconstruction was made the result 
 of Congressional and not Presidential action. 
 
 The two ideas, that Reconstruction was the busi- 
 ness of Congress, and that the seceded States had 
 lost their rights under the Constitution, had been 
 cherished by Stevens from the beginning and in the 
 report of the combined House and Senate committee 
 referred to above, his views had found expression. 
 The argument that the seceded States had never been 
 out of the Union was refuted in the following lan- 
 guage : " If rebellion succeeds, it accomplishes its 
 purpose and destroys the Government. If it fails, 
 the war has been barren of results, and the battle 
 may be still fought out in the legislative halls of 
 the country. Treason, defeated in the field, has only 
 to take possession of Congress and the cabinet." ^ 
 To the radical Thaddeus Stevens, such a possibility 
 
 1 McCall, op. cit., p. 280. 
 
 2 Quoted, McCall, op. cit., 274. 
 
248 Story of the Constitution 
 
 was abhorrent, almost impious. In his eyes the se- 
 ceded States were rebels and should be made to pay 
 the penalty of rebellion. They should be made to 
 feel that the greatest civil war on record was not 
 " barren of results." The victors could and should 
 prescribe such conditions to the vanquished as would 
 secure forever the grand result of freedom to the 
 blacks. 
 
 The Southern legislatures, with the exception of 
 that of Tennessee, had contemptuously rejected the 
 Fourteenth Amendment and with it the mild con- 
 ditions that had been proposed. Deluded by the 
 hope that President Johnson would win in his contest 
 with Congress and unwilling to brand with infamy 
 the leading men in the South, or to proclaim with 
 their own mouths that they had been in error, the 
 States had rejected Reconstruction on the terms of 
 the Fourteenth Amendment.^ Whether or not a dif- 
 ferent course would have been pursued had they re- 
 alized what the radical element, once in power, had 
 in store for them, is matter of speculation merely. 
 
 During the campaign the feeling in favor of negro 
 suffrage grew apace. Before the close of the pre- 
 ceding session, Stevens had made a powerful speech 
 in its advocacy. The force of his appeal was in- 
 creased by the fact that it seemed not unlikely that 
 it would be his last effort, as his health was very 
 poor. When Congress assembled in the autumn of 
 1866, there was little delay in putting into effect 
 the verdict of the country that had been rendered in 
 the recent elections. Congressional Reconstruction 
 M'as at once substituted for Executive. Military 
 
 1 Burgess, op. cit., p. 106. 
 
Thaddeus Stevens 249 
 
 governments were established over the Southern 
 States, and as a condition of their re-entry into the 
 Union, universal suffrage for the blacks as well as 
 for the whites was added to the conditions of the 
 preceding session. Negro suffrage had to be in- 
 corporated in the State constitutions and the Four- 
 teenth Amendment in the national Constitution 
 before the States should " be declared entitled to 
 representation in Congress." ^ 
 
 Upon the basis of Stevens's ideas, Reconstruction 
 was eventually carried out. The South entered upon 
 a period of political anarchy and debauchery which 
 it seems incredible that thinking men should not have 
 foreseen and have shrunk from aghast. Could 
 Stevens have lived to witness the entry of the last 
 seceded State into the Union, even his vindictive 
 spirit must have felt that the " traitors " had paid 
 their due. 
 
 The logical outgrowth of this legislation was the 
 Fifteenth Amendment which Stevens, however, did 
 not live to see. It secured, so far as the forms of 
 law could effect it, that the right to vote should not 
 be denied " on account of race, color, or previous 
 condition of servitude." 
 
 The last important act of Stevens's life was the 
 attempted impeachment of President Johnson.^ For 
 the first and only time in our history, the Presi- 
 dent of the United States was presented at the 
 bar of the Senate by the House of Representatives. 
 The interest of the trial for us is in its effects upon 
 our constitutional theory. It determined finally the 
 
 1 McCall, op. cit, p. 275 #. 
 
 ^Ibid., p. 323, and Burgess, op. dt., p. 157. 
 
250 Stoiy of the Constitution 
 
 futility of attempting to use impeachment as a " po- 
 litical proceeding." If it were possible for the Sen- 
 ate and the House, when two-thirds of their members 
 differed from the President, to remove him from 
 office by the political practice of impeachment, the 
 stability of the Executive would be lost and the 
 balance of the powers of government be destroyed. 
 
 On August 11, 1868, Stevens died, but the radical 
 spirit which he typified lived after him. It stands 
 to-day imprinted on our statute books in the legis- 
 lation of the War and Reconstruction, and has found 
 enduring form in the amendments to the Constitu- 
 tion. But the will-o'-the-wisp of universal suffrage 
 no longer lures us toward the destruction of our 
 institutions. We have realized that it is impossible 
 to lift from " barbaric ignorance " by the ballot, or 
 to endow with political wisdom by the gift of the 
 suffrage. Suffrage is a privilege, not a right, and 
 like liberty, can be enjoyed only by those who have 
 passed through the struggle to win it by their merit. 
 We view with complacency the practical nullification 
 of negro suffrage as secured by the Constitution. 
 Eather than try to work the cumbersome machinery 
 of amendment to undo what required such a wrench 
 of the national life to achieve, we tolerate the 
 violation of the letter of the law of which the spirit 
 is dead. 
 
XII 
 
 Theodore Roosevelt. Growth through 
 
 Expansion 
 
 2SI 
 
THEODORE ROOSEVELT 
 
 1858. Oct. 27. Born In New York City. 
 1880. Graduated from Harvard. 
 
 Student at New York Law School. 
 1882-84. Republican member of New York Assembly. 
 
 1884. Candidate for Speaker of Assembly. 
 
 Delegate to Republican State Convention. 
 Delegate-at-large to Republican National Con- 
 vention at Chicago. 
 1884-86. Lived on ranch in North Dakota. 
 
 1886. Candidate for Mayor of New York City. 
 
 1889. Appointed on U. S. Civil Service Commission. 
 
 1895. Resigned. 
 
 1895-97. President of Board of Police Commissioners 
 
 of New York City. 
 
 1897. April. Appointed Assistant Secretary of U. S. Navy. 
 
 1898. May. Commissioned Lieutenant-Colonel of the 1st 
 
 U. S. V. Cavalry. 
 Promoted to Colonelcy. 
 1899-1900. Governor of New York. 
 
 1900. Nov. 6. Elected Vice-President. 
 
 1901. Sept. 14. Became President upon death of McKinley. 
 1904. Elected President. 
 
 252 
 
XII 
 
 Theodore Roosevelt. Growth through 
 Expansion 
 
 WHEN Eeconstruction was over and the Hayes- 
 Tilden election had reached its partisan con- 
 clusion, the result was acquiesced in by all from a 
 strong desire for peace. The turbulence that had 
 succeeded upon the years of actual warfare was little 
 less exhausting than the strife of battle. It inter- 
 fered with national development of every character 
 so seriously that by 1877 men were willing to secure 
 peace at almost any price. For two decades there- 
 after the nation gave itself over unrestrainedly to 
 commerce and the development of its natural re- 
 sources.^ Railways sprang up all over the country 
 and were united into great systems; enormous aggre- 
 gates of capital were gathered into corporations and 
 corporations into trusts; business lost its local and 
 assumed a national character. The spirit of com- 
 mercialism and the love of gain were the gods of the 
 hour, to be worshipped with the sacrifice of moral 
 character and business principles. 
 
 1 For the period 1877-1897, see Sparks, E. E., National De- 
 velopment, 1877-1885; and Dewey, D. R., National Problems, 
 1885-1897. 
 
 2Si 
 
254 Story of the Constitution 
 
 The reaction from the high moral tone and severe 
 stress of the slavery agitation and emancipation came 
 with the greater disaster because of their previous 
 strength. The moral stamina of the nation seemed 
 impaired; new standards of ethics and of conduct 
 arose in the world of affairs, which winked at the 
 offences of corporation officials and condoned their 
 violations of law as if there were a difference be- 
 tween private and official conduct, as if officials were 
 as soulless as the corporations they represented. 
 The same tendency showed itself in the field of gov- 
 ernment : with the lessening of the tension, corruption 
 crept in. 
 
 With the return of peace, moreover, there set in 
 a steady process of readjustment in the functions of 
 government. The various departments settled back 
 into their normal extent. In the earlier part of the 
 war Lincoln had expanded the power of the Executive 
 into a dictatorship to save the Union. Before its 
 close the dictatorship had passed to Congress, which 
 far exceeded the normal limits of its action and 
 assumed the direction of the whole course of the 
 government. Combined with the Judiciary, the Ex- 
 ecutive and the Legislative branches of the govern- 
 ment had stretched federal powers beyond the limits 
 previously conceived, and State and divided sover- 
 eignty were replaced by an unquestioned national 
 supremacy.^ 
 
 The sovereignty of the nation has remained, but 
 the high tide of Executive and Legislative encroach- 
 ment began to recede shortly after the close of the 
 
 1 Cf. Dunning, Essays on Civil War and Reconstruction, the 
 first two chapters. 
 
Theodore Roosevelt 255 
 
 war, and from 1878 to 1898 men felicitated themselves 
 upon the ease with which the powers of the national 
 government could be expanded to meet a crisis and 
 then sink back into their normal condition as of 
 course. In such a spirit men preferred to see the 
 government do too little rather than too much. 
 
 From the standpoint, then, of our constitutional 
 development in its larger phases, we may regard the 
 years from 1878 to 1898 as the seven lean years that 
 followed upon the seven fat years of the Civil War. 
 Something of the plethora of previous high living 
 was lost and a more normal condition supervened. 
 There was, nevertheless, a development going on, but 
 so quietly and unobtrusively as to be almost un- 
 noticed, which lay chiefly in the field of property 
 rights as influenced by the presence of corporations. 
 
 This purely commercial era was followed by the 
 Spanish War, which marked the latest stage in our 
 national expansion and ushered in Imperialism.^ 
 The possession of colonial dependencies has brought 
 many new and grave questions for solution, while 
 the economic and social problems which the com- 
 mercial and industrial development had produced, 
 have become more aggravated and acute. The prob- 
 lems of Imperialism have been linked with those of 
 our economic development and to many, colonial em- 
 pire has been synonymous with wider markets. As 
 the issues of Imperialism have become less absorb- 
 ing, those of Industrialism have become more press- 
 ing. The nation at large has been touched by the 
 
 iSee Latane, J. H., America the World Power, 1897-1907; 
 also Giddings, P. "W ., Democracy and Empire; Hobson, J. A., 
 Imperialism, A Study; and Jordan, D. S., Imperial Democracy. 
 
256 Story of the Constitution 
 
 growing strength of the social consciousness, by the 
 increasing demands for an enlarged conception of 
 social welfare, and has given ear to the socialistic 
 tendencies of the day. 
 
 The last ten years, therefore, may properly be desig- 
 nated as years of expansion, both territorial and 
 commercial. For the first time in our history we 
 have attempted to govern over-sea possessions and 
 for the first time we have become a factor of con- 
 sequence in the politics of the world. We are no 
 longer isolated, but stand shoulder to shoulder with 
 the great nations of the earth.^ 
 
 No name has been more intimately associated with 
 this period of our national life than that of Mr. 
 Koosevelt. In its earlier phases, to be sure, he was 
 not the most commanding figure nor was he in a 
 position to guide and direct affairs, though he par- 
 ticipated in them. Yet he has identified himself so 
 completely in word and in deed with the war and 
 its results, both while it was in progress and sub- 
 sequently, that he may justly be regarded as repre- 
 sentative of its ideals. Since the first problems of 
 Imperialism have been met and the attention of the 
 country has been directed to the social and economic 
 evils attendant upon our commercial development, he 
 has stood at the front. For the past seven years he 
 has held first place in the public eye, and the " Roose- 
 velt Policies " have been the guides of government 
 action ^ ; his influence has been the determining force 
 
 1 Cf. Coolidge, A. C, The United States as a World Power. 
 
 'Cf. The Roosevelt Policy: Speeches, Letters, and State 
 Papers Relating to Corporate Wealth and Closely Allied Topics, 
 2 vols., N. Y., 1908 ; and The Roosevelt Doctrine, Being the Per- 
 
Theodore Roosevelt 257 
 
 and in him is personified the spirit of our develop- 
 ment since 1898. 
 
 The career of Mr. Roosevelt is so well known that 
 a detailed exposition of it is unnecessary.^ He was 
 born in New York City in 1858, was graduated from 
 Harvard in 1880, served as a member of the New 
 York State Assembly from 1882 to 1884, and in 1886 
 was an unsuccessful candidate for Mayor of New 
 York City; three years later he was appointed by 
 President Harrison a member of the National Civil 
 Service Commission on which he served for six years, 
 resigning to become President of the Board of Police 
 Commissioners of New York City for two years. As 
 Assistant Secretary of the Navy, Roosevelt entered 
 national politics in 1897, and in the following year 
 was appointed Lieutenant-Colonel, then Colonel, of 
 the " Rough Riders " in the Spanish War and was 
 elected Governor of New York. In 1900 he was 
 elected Vice-President and upon the death of Presi- 
 dent McKinley, became President of the United States 
 on September 14, 1901. In 1904 he was elected 
 President. 
 
 His life may be epitomized in the phrase " doing 
 things," and the most prominent characteristic of 
 the government he has guided would find suitable 
 expression in the same words. This activity of the 
 government has been present in the fields both of 
 territorial expansion and industrial combination, but 
 we must recognize that the nearer we stand in point 
 of time to the things the government is doing, the 
 
 sonal Utterances of the President on Various Matters of Vital 
 Interest, N. Y., 1904. 
 
 1 Cf. Riis, Theodore Roosevelt, the Citizen. 
 
258 Story of the Constitution 
 
 more difficult it is for us to pass a correct judg- 
 ment upon them, to estimate the forces producing 
 them, and to determine their results. No attempt 
 will be made to predict the final results as they shall 
 take shape in our constitutional life, or to estimate 
 conclusively the relation that Roosevelt will bear to 
 the changes, but it seems possible to indicate some 
 of the general tendencies and to show how they are 
 modifying our constitutional life and habit. It is 
 quite another matter to determine how lasting will 
 be the present movements or how deep-seated are the 
 transformations now in progress. 
 
 The expansion that came as a result of the Span- 
 ish War was essentially different from that which had 
 preceded. Beginning with the purchase of Louisiana, 
 the westward growth of the national territory had 
 been steady and natural. It came through settle- 
 ment, through the pushing out of the borders of 
 civilization into country hitherto unoccupied, or at 
 best in the possession of Indian tribes or of scat- 
 tered Spanish settlements. The government of the 
 new territory was exercised over men of the same 
 race, with the same ideals and the same traditions 
 respecting liberty and authority; the virgin soil of 
 the West was occupied by the steady advance of the 
 same civilization. The expansion of 1898 imported 
 new conditions and new problems. It was not mere 
 extension, but at a single bound we crossed the sea 
 and took possession of territory already held by peo- 
 ples with a civilization essentially different from our 
 own ; the new task was set us of incorporating these 
 radically different elements into our national life, 
 and even yet their final status is matter of discus- 
 
Theodore Roosevelt 259 
 
 sion. We have undertaken a previously untried 
 work — that of teaching an Oriental people the art 
 of self-government. 
 
 The framers of the Constitution could not possibly 
 have foreseen such an expansion and therefore they 
 made no specific provision for it, but following out 
 the general lines of previous national development, 
 we have found warrant in the existence of a national 
 state for the performance of this function of gov- 
 ernment as an integral part of state life. In ac- 
 cordance with this view, we have moulded our 
 constitutional practices with reference to our de- 
 pendencies. They are in our national life, but they 
 are not a part of it. For certain purposes they are 
 our territory, while for certain other they are not. 
 Their citizens are not citizens of the United States, 
 though they are entitled to its protection. The Con- 
 stitution does not follow the flag, though the funda- 
 mental rights of liberty are not to be denied to the 
 inhabitants of our dependencies. We may hold and 
 govern dependent territories; a republic, we may 
 nevertheless rule over subjects.^ 
 
 Self-government is rightly regarded as of the es- 
 sence of modern political liberty. No people is free 
 that cannot and does not govern itself, it matters 
 not how large a sphere of action is left to individuals 
 by their rulers. By many it has been deemed fatal 
 to liberty for a free people to rule over subjects ; the 
 exercise of arbitrary power reacts upon the liberty 
 of those exercising it and there is a lessening of 
 
 iC/. Latane, America, the World Power, p. 133 ff; and the 
 Insular Cases, 182 U. S. Supreme Court Reports, 1 ff; 183 U. S. 
 151 ff and 176 ff. 
 
26o Story of the Constitution 
 
 the spirit of true freedom. Men cannot consistently 
 claim the right to rule themselves and not grant to 
 others the same right. Inconsistency and inequality, 
 in politics as elsewhere, tend toward uniformity, and 
 as in the science of finance the worse metal will 
 drive the better out of circulation, so in the world 
 of political relations the baser coinage of despotic 
 rule puts to flight the pure mintage of individual 
 liberty. 
 
 It cannot be successfully denied that to some ex- 
 tent the truth of this view has been demonstrated in 
 our own case, though the loss of liberty we have 
 experienced is to be felt rather in the general at- 
 titude of the government toward the individual than 
 in any concrete loss we have suffered through statu- 
 tory enactment.^ The centralizing tendencies of the 
 Federal Government have been increased and the 
 uneven balance between the States and the nation 
 has been rendered still greater. With alarming fre- 
 quency the government has undertaken new services 
 for the people and the more government does, the 
 louder is the demand for fresh acts of paternal care. 
 The spirit of individual initiative is weakened and 
 the desire for collective activity grows apace. 
 
 Within the Federal Government itself, the position 
 of the President has profited most by Imperialism." 
 Both in domestic affairs and in foreign relations he 
 has assumed a far more commanding position than 
 heretofore. Though Congress has the right to pass 
 
 1 Cf. Jordan, David Starr, Imperial Democracy, and Hobson, 
 J. A., Imperialism, A Study. 
 
 2 Wilson, Woodrow, Congressional Government, Preface to the 
 15th Ed., p. xi. ff. 
 
Theodore Roosevelt 261 
 
 all laws regulating the government of national terri- 
 tory, in the earlier stages of acquisition it has been 
 the President, through the army, who has governed 
 it, and even after Congress has legislated there still 
 remains an extensive field for Executive action and 
 discretion. Our position as a world power has like- 
 wise contributed to the elevation of the Executive 
 in proportion as it has enlarged and complicated our 
 relations with other powers. In both the external 
 and the internal policy of the government. President 
 Eoosevelt was peculiarly fitted by temperament to 
 make the infiuence of the Executive felt to a degree 
 seldom attained in our history. In this respect he 
 stands with Jackson and Lincoln; each of them ex- 
 alted the power of the Executive to a place of pre- 
 dominance in our scheme of government. 
 
 The influence, then, of our recent territorial ex- 
 pansion has been twofold: on the one hand, it has 
 tended to strengthen the power of the Executive and 
 of the Federal Government, to accentuate the central- 
 izing tendency that is present in every modern gov- 
 ernment and in every stage of governmental activity 
 from city to nation ; on the other, it has rounded out 
 the constitutional development of the country on the 
 side of national sovereignty. The Civil War wrought 
 sad havoc in the fine-spun theories of delegated and 
 strictly limited powers, of divided sovereignty and of 
 the nice adjustment of the parts of government over 
 against each other. The President and Congress by 
 turns assumed a preponderance that destroyed all 
 equilibrium, and the Federal Government acted on the 
 theory of national sovereignty and the necessity of 
 preserving the Union as the only limit of its powers. 
 
262 Story of the Constitution 
 
 These extensions of power were, nevertheless, re- 
 garded as usurpations and as justified only by the 
 circumstances ; they were to be tolerated only so long 
 as the conditions that produced them should continue 
 operative. Thus it happened that a process of re- 
 adjustment set in after the return of normal con- 
 ditions and, save for the questions which the actual 
 result of the war had settled, there was little to 
 mark the previous expansion of the powers and the 
 unsettling of relationships. The nature of the Union 
 was at length fixed but the determination seemed to 
 bring little change. The States no longer claimed 
 to be sovereign, but the existence of sovereignty in 
 the nation left the every-day relations of the States to 
 the Union in much the same condition as previously. 
 Their influence, however, was lessened and their 
 individual positions were less commanding, and in 
 proportion as they have lost, the Federal Government 
 has gained, in the esteem in which it is held by the 
 people. As the one has fallen the other has risen, 
 till a lively fear is entertained by many that a real 
 danger threatens from this quarter. When Mr. 
 Eoot spoke of wiping out State lines,^ champions of 
 a new kind of State-Eights arose on every hand to 
 execrate the dangerous tendency of centralization. 
 
 A large part of the increase of Federal powers has 
 come as a result of our colonial policy which has 
 both elevated and strengthened the position of the 
 nation, without effecting a corresponding change in 
 that of the States. The holding of dependencies by 
 the nation has reacted in a twofold manner on the 
 nation itself; it has brought a vivid consciousness of 
 
 ' In New York City, 1906. 
 
Theodore Roosevelt 263 
 
 a new phase of nationality to our Union and vastly 
 increased the activities of that Union. The process 
 of the development of our national feeling has been 
 a long and a difficult one and it is only since the 
 acquisition of our colonies that we have experienced 
 its full extent; since then we have acquiesced more 
 fully in the view that the limits of action set to the 
 sphere of the Federal Government are not to be 
 measured with the foot-rule of strict construction 
 and delegated powers, but are to be meted out 
 generously with the yardstick of true nationality. 
 
 President Roosevelt was the leader in bringing to 
 our conscious realization this sense of nationality; 
 the sense that we have at last reached our majority 
 and have been admitted to an equal place and an 
 equal voice in the family of nations. He has at- 
 tempted to awaken a corresponding sense of the na- 
 tional duties and responsibilities that accompany 
 national maturity. We must mean what we say and 
 be prepared to make it good, if we would fill a man's 
 place in the world. We must love peace and pur- 
 sue it, but at the same time be prepared for war. We 
 must be ready and willing to assume the responsi- 
 bilities that result from our foreign policy if we 
 would make that policy respected.^ Thus it is that 
 he pleads for a stronger navy and army; that he 
 restores the peace of the world through his media- 
 tion ; that he reformulates the Monroe Doctrine and, 
 regretting the Pacific Blockade of Venezuelan ports 
 in 1903, anticipates similar action in San Domingo 
 by arranging that the United States shall collect the 
 revenue and herself apply it to the liquidation of 
 
 1 The Roosevelt Policy, passim. 
 
264 Story of the Constitution 
 
 the debts; that he seizes a questionable opportunity 
 to secure territorial concessions that make the build- 
 ing of the Panama Canal a possibility; that he se- 
 cures the participation of the United States in a 
 European conference on Morocco and the admission 
 of the South and Central American states to the 
 Second Hague Conference. 
 
 If Mr. Roosevelt may be regarded as typical of the 
 development that has resulted from territorial ex- 
 pansion, and as embodying the nationalizing forces 
 of Imperialism, even more may he be regarded as the 
 soul of the constitutional changes which have resulted 
 from modem industrial conditions. He has stood in 
 the forefront, pointing the way to ever increasing 
 activity on the part of the Federal Government. To 
 vary the figure, he has lashed Congress and the coun- 
 try with repeated blows from the Presidential mes- 
 sage, urging and reurging the enactment of measures 
 of a great variety, nearly all of them characterized 
 by an expansion of power or an extension of function 
 on the part of the government, and touching the 
 industrial life of the country.^ The old ideals of 
 government in general, and of our government in 
 particular, are declared no longer adequate. New 
 economic and social conditions demand new courses 
 of action on the part of the government and from 
 the peculiar character of our government, with its 
 division of power between the States and the nation, 
 it has been declared necessary, from the nature of 
 our economic development, that the Federal Govern- 
 ment should undertake the new functions. 
 
 The old ideal of individualism found expression in 
 
 1 The Roosevelt Policy, passim. 
 
Theodore Roosevelt 265 
 
 the economic world in the theory of free competition ; 
 it was regarded as sound economic doctrine that un- 
 restricted competition would work out best in the 
 end, both for individuals and for industry. The part 
 of the law was to provide merely that competition 
 should be unrestricted ; having provided a clear field, 
 let the contestants fight it out and the individual 
 with the greatest amount of energy, shrewdness, 
 strength, perseverance, and talent would triumph, to 
 the benefit of himself and of society. Such a view 
 comported well with the conditions of a society, sim- 
 ple in its structure and organization, wherein the 
 contestants were measurably equal; wherein indi- 
 viduals struggled with individuals and success was 
 due to a natural superiority, but it has proved in- 
 adequate to modern industrial conditions, with their 
 great complexity of relations and with the competing 
 factors on a plane far from equal. The law, instead 
 of affording a free field for equal competitors, has 
 itself produced the gravest inequality through the 
 creation of group persons, corporations, with which 
 the individual finds it increasingly difficult to com- 
 pete successfully. Success is no longer due to the 
 natural talents of the individual but to the natural 
 talents, plus the fortuitous advantages accruing to 
 groups of individuals through the corporation. 
 
 To meet the organizations of capital, labor, too, 
 has been organized ^ ; the trust and the labor union 
 are new and controlling factors in the modern indus- 
 trial world; through them a large part of society 
 finds itself separated into opposing camps, each 
 fighting for existence. The clash of these divergent 
 
 1 Cf. Dewey, op. cit., p. 40 ff. 
 
■V 
 
 266 Story of the Constitution 
 
 interests has often been severe and prolonged. The 
 strike and the lockout are familiar proceedings, 
 while the boycott and blacklist have attained a 
 notoriety for lawlessness and oppression, as detest- 
 able as the unwarranted use of the injunction and 
 Pinkerton detectives. 
 
 Meanwhile the interests of the public at large have 
 been disregarded with unpardonable indifference by 
 both sides. In an age of such highly developed 
 specialization of industries and consequent greater 
 dependence of man upon man for the means of ex- 
 istence, it is not solely capital and labor that have 
 a vital interest in their disputes; the circle of those 
 affected is a constantly widening one, and the steady 
 and uninterrupted pursuit of those industries touch- 
 ing the public welfare is of so great importance to 
 the community, that it welcomes the settlement of 
 an anthracite coal strike through the interposition 
 of the personal influence of the President, and can- 
 vasses the question of government ownership of nat- 
 ural resources, when limited in extent and essential 
 to modern life. 
 
 The individual has sunk his individuality in large 
 measure in the corporation on the one hand and the 
 labor union on the other ; individualism and free com- 
 petition as the basis of industrialism have given way 
 to combination. While this change has been in pro- 
 gress, the public welfare has suffered and the interests 
 of the community have been disregarded because our 
 theories of government and economics have not 
 squared with practice, and the whole foundation of 
 society, of law, and of government has been affected. 
 We have clung to individualism in the field of gov- 
 
Theodore Roosevelt 267 
 
 ernment and deserted it in the field of business, and 
 the inevitable result has followed. The law has 
 proved inadequate to the task set it and government 
 has failed in some of its primary obligations to its 
 citizens. The " predatory rich " no less than the 
 walking delegate, have trampled upon the rights of 
 individuals and of society; corporations and labor 
 unions have menaced the safety and prosperity of 
 society, until the people, at length awakened to the 
 dangers of the situation, have attempted to put a 
 hook in the nose of these great Leviathans. 
 
 No one perceived these dangers more clearly than 
 President Roosevelt and no one has been more 
 strenuous in seeking to remedy them, in order that 
 equality of opportunity for both labor and capital 
 might be secured, and that every man, to use his own 
 words, might get "a square deal." ^ No one with less 
 courage would have cast himself so boldly upon the 
 people for support, and his constant appeals to them 
 have ranged him with Jefferson and Jackson as a be- 
 liever in the ultimate wisdom of the mass of man- 
 kind. No one who was not both leader of his party 
 and of the nation could have succeeded. 
 
 The only possible solution of the problem lay in 
 the performance by the government of its legitimate 
 function of maintaining a free field, of its first duty 
 of equal justice to all, though in doing so it might 
 depart very far from the old ideals of laissez-faire 
 and be compelled to strengthen its powers and extend 
 its functions. Such a result was in entire harmony 
 with Roosevelt's whole theory of government, which 
 combines the trust of Jefferson in the people with 
 
 1 The Roosevelt Policy, i., 158. 
 
268 Story of the Constitution 
 
 Hamilton's belief in the efficacy of government as a 
 means of progress. He typifies a triumphant and 
 confident democracy which is bent on making gov- 
 ernment an instrument of the general welfare to an 
 extent hitherto only dreamed of. Jeflferson led the 
 forces of the people to an attack upon government 
 that they might conquer and curb it, lest it destroy 
 their liberties. They would weaken it, that it might 
 not harm them. Jackson captained the hosts of the 
 country to win possession of the government from 
 which they had been unjustly excluded; and once in 
 possession, they sought to crush out the Bank as an 
 agency of oppression. The danger from government 
 was still present to their minds, though it was be- 
 cause government was in the hands of the enemies 
 of the people. When President Eoosevelt assumed 
 the reins of government, it was to lead the people 
 in an attack upon the money power that had gotten 
 possession of the government somewhat as in the 
 time of Jackson, but, unlike either Jefferson or Jack- 
 son, the desire to secure control came not from fear 
 of the government, but from the belief that govern- 
 ment should be an organ for the advancement of the 
 interests of society, that it should actively and 
 consciously strive to promote the welfare of the 
 community. Instead, therefore, of being afraid of 
 government as an instrument of oppression and be- 
 ing jealous of the extent of its sphere, he sought to 
 control it that he might widen its scope to meet the 
 needs of an awakened social consciousness. Like 
 James Wilson, he desired the foundation of all au- 
 thority to flow from the people, but he desired that 
 authority to be strong. 
 
Theodore Roosevelt 269 
 
 So far as the Federal Government was concerned, 
 the period since the Civil War had witnessed a retro- 
 gression rather than a progression in the extent of 
 its services to the community; it had lagged behind 
 the needs of the country; almost no serious attempt 
 had been made to control the great combinations of 
 capital and labor. The most urgent considerations 
 demanded that the public should not be made a prey 
 of either, and protection could be secured through 
 no other agency than that of government, for no 
 other was strong enough. From the peculiar char- 
 acter of our constitutional arrangements, with its 
 dual system of government, and from the national 
 extent of the combinations, the logical and legal 
 source of the power to exercise the necessary protec- 
 tion must lie in the Federal Government. 
 
 The country at large acquiesced in this view and a 
 rapid succession of measures followed, each tending 
 to increase the power and the extent of the control 
 of the Federal Government over the daily life of the 
 citizens.^ But the extent of the change can no more 
 be measured by the laws upon the statute book than 
 could that effected by the election of Jefferson or 
 Jackson. It is a change of ideals, and its ultimate 
 effect upon our constitutional life and practices can 
 be estimated only by subsequent generations. 
 
 The source of the government's power over so large 
 a part of our industrial activity lies in its con- 
 trol of interstate commerce, and that clause of 
 the Constitution conferring the control has been 
 the authority for most of the legislation of recent 
 
 1 Cf. Pierce, Franklin, Federal Usurpation, and Stimson, J. F. 
 
 The American Constitution. 
 
270 Story of the Constitution 
 
 years which smacks of paternalism and even of 
 socialism. 
 
 The need for uniformity in the regulation of com- 
 merce between the States and with foreign nations 
 was one of the leading causes for summoning the 
 Constitutional Convention and elaborating a new 
 Constitution. The jealousies and discriminations of 
 the States against each other had prpduced a de- 
 plorable and unendurable condition, which made it 
 necessary that all commerce not within a single State 
 should be put under the control of the Federal Gov- 
 ernment. The power to regulate interstate and 
 foreign commerce has always been a source of great 
 strength to the national government, for the expan- 
 sion of commerce has necessitated a corresponding 
 expansion of the activities of government. The de- 
 velopment of great corporations, both for production 
 and for transportation, has made interstate commerce 
 a marvel of complexity. To meet the new conditions 
 laws have been passed looking to their regulation by 
 the Federal Government. A supervision of this 
 character has necessitated the creation of a host of 
 government inspectors and commissions, that has 
 gone far toward justifying the extreme individualist 
 in asserting that we are in danger of erecting a 
 government, not of laws but of men. 
 
Appendix 
 
 271 
 
THE DECLARATION OP INDEPENDENCE 
 
 In Congress, July 1^, 1776 
 
 The Unanimous Declaration of the Thirteen 
 United States of America 
 
 WHEN in the Course of human events, it becomes 
 necessary for one people to dissolve the political 
 bands which have connected them with another, and to 
 assume among the Powers of the earth, the separate and 
 equal station to which the Laws of Nature and of Na- 
 ture's God entitle them, a decent respect to the opinions 
 of mankind requires that they should declare the causes 
 which impel them to the separation. 
 
 We hold these truths to be self-evident, that all men 
 are created equal, that they are endowed by their Creator 
 with certain unalienable Rights, that among these are 
 Life, Liberty, and the pursuit of Happiness. That to 
 secure these rights, Governments are instituted among 
 Men, deriving their just powers from the consent of the 
 governed. That whenever any Form of Government be- 
 comes destructive of these ends, it is the Right of the 
 People to alter or to abolish it, and to institute new 
 Government, laying its foundation on such principles 
 and organizing its powers in such form, as to them shall 
 seem most likely to effect their Safety and Happiness. 
 Prudence, indeed, will dictate that Governments long 
 established should not be changed for light and transient 
 
 i8 275 
 
2 74 Story of the Constitution 
 
 causes; and accordingly all experience hath shown, that 
 mankind are more disposed to suffer, while evils are 
 suffer able, than to right themselves by abolishing the 
 forms to which they are accustomed. But when a long 
 train of abuses and usurpations, pursuing invariably the 
 same Object, evinces a design to reduce them under ab- 
 solute Despotism, it is their right, it is their duty, to 
 throw off such Government, and to provide new Guards 
 for their future security. — Such has been the patient suf- 
 ferance of these Colonies; and such is now the necessity 
 which constrains them to alter their former Systems of 
 Government. The history of the present King of Great 
 Britain is a history of repeated injuries and usurpations, 
 all having in direct object the establishment of an ab- 
 solute Tyranny over these States. To prove this, let 
 Facts be submitted to a candid world. 
 
 He has refused his Assent to Laws, the most whole- 
 some and necessary for the public good. 
 
 He has forbidden his Governors to pass Laws of im- 
 mediate and pressing importance, unless suspended in 
 their operation till his Assent should be obtained; and 
 when so suspended, he has utterly neglected to attend 
 to them. 
 
 He has refused to pass other Laws for the accommoda- 
 tion of large districts of people, unless those people would 
 relinquish the right of Representation in the Legislature, 
 a right inestimable to them and formidable to tyrants 
 only. 
 
 He has called together legislative bodies at places un- 
 usual, uncomfortable, and distant from the depository 
 of their Public Records, for the sole purpose of fatiguing 
 them into compliance with his measures. 
 
 He has dissolved Representative Houses repeatedly, for 
 opposing with manly firmness his invasions on the rights 
 of the people. 
 
 He has refused for a long time, after such dissolutions, 
 
The Declaration of Independence 275 
 
 to cause others to be elected; whereby the Legislative 
 Powers, incapable of Annihilation, have returned to the 
 People at large for their exercise; the State remaining 
 in the mean time exposed to all the dangers of invasion 
 from without, and convulsions within. 
 
 He has endeavored to prevent the population of these 
 States; for that purpose obstructing the Laws for Natu- 
 ralization of Foreigners; refusing to pass others to 
 encourage their migration hither, and raising the condi- 
 tions of new Appropriations of Lands. 
 
 He has obstructed the Administration of Justice, by 
 refusing his Assent to Laws for establishing Judiciary 
 Powers. 
 
 He has made Judges dependent on his Will alone, for 
 the tenure of their ofiSces, and the amount and payment 
 of their salaries. 
 
 He has erected a multitude of New Offices, and sent 
 hither swarms of Officers to harass our People, and eat 
 out their substance. 
 
 He has kept among us, in times of peace. Standing 
 Armies without the Consent of our legislature. 
 
 He has affected to render the Military independent of 
 and superior to the Civil Power. 
 
 He has combined with others to subject us to a juris- 
 diction foreign to our constitution, and unacknowledged 
 by our laws ; giving his Assent to their Acts of pretended 
 Legislation : 
 
 For quartering large bodies of armed troops among us : 
 
 For protecting them, by a mock Trial, from Punish- 
 ment for any Murders which they should commit on the 
 Inhabitants of these States : 
 
 For cutting oflf our Trade with all parts of the 
 world : 
 
 For imposing taxes on us without our Consent: 
 
 For depriving us in many cases, of the benefits of Trial 
 by Jury: 
 
2 76 Story of the Constitution 
 
 For transporting us beyond Seas to be tried for pre- 
 tended offences: 
 
 For abolishing the free System of English Laws in a 
 neighboring Province, establishing therein an Arbitrary 
 goyernment, and enlarging its Boundaries so as to render 
 it at once an example and fit instrument for introducing 
 the same absolute rule into these Colonies: 
 
 For taking away our Charters, abolishing our most 
 valuable Laws, and altering fundamentally the Forms of 
 our Governments: 
 
 For suspending our own Legislatures, and declaring 
 themselves invested with Power to legislate for us in all 
 cases whatsoever. 
 
 He has abdicated Government here, by declaring us out 
 of his Protection and waging War against us. 
 
 He has plundered our seas, ravaged our Coasts, burnt 
 our towns, and destroyed the lives of our people. 
 
 He is at this time transporting large armies of foreign 
 mercenaries to compleat the works of death, desolation, 
 and tyranny, already begun with circumstances of 
 Cruelty & perfidy scarcely paralleled in the most bar- 
 barous ages, and totally unworthy the Head of a civilized 
 nation. 
 
 He has constrained our fellow Citizens taken Captive 
 on the high Seas to bear Arms against their Country, to 
 become the executioners of their friends and Brethren, 
 or to fall themselves by their Hands. 
 
 He has excited domestic insurrections amongst us, and 
 has endeavored to bring on the inhabitants of our fron- 
 tiers, the merciless Indian Savages, whose known rule of 
 warfare is an undistinguished destruction of all ages, 
 sexes, and conditions. 
 
 In every stage of these Oppressions We have Peti- 
 tioned for Redress in the most humble terms: Our re- 
 peated Petitions have been answered only by repeated 
 injury, A Prince, whose character is thus marked by 
 
The Declaration of Independence 277 
 
 every act which may define a Tyrant, is unfit to be the 
 ruler of a free People. 
 
 Nor have We been wanting in attention to our British 
 brethren. We have warned them from time to time of 
 attempts by their legislature to extend an unwarrantable 
 jurisdiction over us. We have reminded them of the 
 circumstances of our emigration and settlement here. 
 We have appealed to their native justice and magna- 
 nimity, and we have conjured them by the ties of our 
 common kindred to disavow these usurpations, which 
 would inevitably interrupt our connections and corre- 
 spondence. They too have been deaf to the voice of 
 justice and of consanguinity. We must, therefore, ac- 
 quiesce in the necessity, which denounces our Separation, 
 and hold them, as we hold the rest of mankind. Enemies 
 in War, in Peace Friends. 
 
 We, therefore, the Bepresentatives of the United States 
 of America, in General Congress, Assembled, appealing 
 to the Supreme Judge of the world for the rectitude of 
 our intentions, do, in the Name, and by Authority of the 
 good People of these Colonies, solemnly publish and de- 
 clare. That these United Colonies are, and of Right ought 
 to be Free and Independent States; that they are Ab- 
 solved from all Allegiance to the British Crown, and that 
 all political connection between them and the State of 
 Great Britain, is and ought to be totally dissolved; and 
 that as Free and Independent States, they have full 
 Power to levy War, conclude Peace, contract Alliances, 
 establish Commerce, and to do all other Acts and Things 
 which Independent States may of right do. And for 
 the support of this Declaration, with a firm reliance on 
 the Protection of Divine Providence, we mutually pledge 
 to each other our Lives, our Fortunes, and our sacred 
 Honor. 
 
 JOHN HANCOCK. 
 
2 78 Story of the Constitution 
 
 New Hampshire — Josiah Baetlett, Wm. Whipple, 
 Matthew Thornton. 
 
 Massachusetts Bay — Saml. Adams, John Adams, Robt. 
 Treat Paine, Elbridge Geeey. 
 
 Rhode Island — Step, Hopkins, William Ellbet. 
 
 Connecticut — Eogee Sherman, Sam'bl Huntington, 
 Wm. Williams, Oliver Wolcott. 
 
 New York — Wm. Floyd, Phil. Livingston, Feans. 
 Lewis, Lewis Morris. 
 
 New Jersey — Eichd. Stockton, Jno. Witheespoon, 
 Fras. Hopkinson, John Hart, Abra. Clark. 
 
 Pennsylvania — Kobt. Morris, Benjamin Rush, Benja. 
 Franklin, John Morton, Geo. Olymee, Jas. Smith, Geo. 
 Taylor, James Wilson, Geo. Ross. 
 
 Delaware — Caesar Rodney, Geo. Read, Tho. M'Kban. 
 
 Maryland — Samuel Chase, Wm. Paca, Thos. Stone, 
 Charles Carroll of Carrollton. 
 
 Virginia — George Wythe, Richard Henry Lee, Th 
 Jefferson, Bbnja. Harrison, Thos. Nelson, jr., Francis 
 Lightfoot Lee, Carter Braxton, 
 
 North Carolina — Wm. Hooper, Joseph Hewes, John 
 Penn. 
 
 South Carolina — ^Edwaed Rutledgb, Thos. Hbyward, 
 Junr., Thomas Lynch, Junr., Arthur Middlbton. 
 
 Georgia — Button Gwinnett, Lyman Hall, Geo. 
 Wauton. 
 
THE ARTICLES OF CONFEDERATION 
 
 Articles of Confederation and Perpetual Union tetween 
 the States of New Hampshire, Massachusetts Bay, 
 Rhode Island and Providence Plantations, Connecti- 
 cut, New York, New Jersey, Pennsylvania, Delaware, 
 Maryland, Virginia, North Carolina, South Carolina, 
 and Georgia. 
 
 Article I. — The style of this Confederacy shall be, 
 " The United States of America." 
 
 Art. II. — ^Each State retains its sovereignty, freedom, 
 and independence, and every power, jurisdiction, and 
 right, which is not by this Confederation expressly dele- 
 gated to the United States in Congress assembled. 
 
 Art. III. — The said States hereby severally enter into 
 a firm league of friendship with each other, for their 
 common defence, the security of their liberties, and their 
 mutual and general welfare, binding themselves to assist 
 each other against all force offered to, or attacks made 
 upon them, or any of them, on account of religion, sov- 
 ereignty, trade, or any other pretence whatever. 
 
 Art. IV. — The better to secure and perpetuate mutual 
 friendship and intercourse among the people of the dif- 
 ferent States in this Union, the free inhabitants of each 
 of these States, paupers, vagabonds, and fugitives from 
 justice excepted, shall be entitled to all privileges and 
 immunities of free citizens in the several States; and the 
 people of each State shall have free ingress and egress 
 
 279 
 
28o Story of the Constitution 
 
 to and from any other State, and shall enjoy therein all 
 the privileges of trade and commerce subject to the same 
 duties, impositions, and restrictions as the inhabitants 
 thereof respectively ; provided that such restrictions shall 
 not extend so far as to prevent the removal of property 
 imported into any State to any other State of which the 
 owner is an inhabitant ; provided also, that no imposition, 
 duties, or restriction shall be laid by any State on the 
 property of the United States or either of them. If any 
 person guilty of, or charged with, treason, felony, or 
 other high misdemeanor in any State shall flee from jus- 
 tice and be found in any of the United States, he shall, 
 upon demand of the governor or executive power of the 
 State from which he fled, be delivered up and removed 
 to the State having jurisdiction of his offence. Full faith 
 and credit shall be given in each of these States to the 
 records, acts, and judicial proceedings of the courts and 
 magistrates of every other State. 
 
 Art. V. — For the more convenient management of the 
 general interests of the United States, delegates shall be 
 annually appointed in such manner as the Legislature of 
 each State shall direct, to meet in Congress on the first 
 Monday in November, in every year, with a power re- 
 served to each State to recall its delegates, or any of 
 them, at any time within the year, and to send others 
 in their stead for the remainder of the year. No State 
 shall be represented in Congress by less than two, nor 
 by more than seven members; and no person shall be 
 capable of being a delegate for more than three years in 
 any term of six years; nor shall any person, being a 
 delegate, be capable of holding any oflSce under the United 
 States for which he, or another for his benefit, receives 
 any salary, fees, or emolument of any kind. Each State 
 shall maintain its own delegates in any meeting of the 
 States and while they act as members of the Committee 
 of the States. In determining questions in the United 
 
The Articles of Confederation 281 
 
 states in Congress assembled, each State shall have one 
 vote. Freedom of speech and debate in Congress shall 
 not be impeached or questioned in any court or place out 
 of Congress; and the members of Congress shall be pro- 
 tected in their persons from arrests and imprisonment 
 during the time of their going to and from, and at- 
 tendance on, Congress, except for treason, felony, or 
 breach of the peace. 
 
 Art. VI. — No State, without the consent of the United 
 States, in Congress assembled, shall send any embassy 
 to, or receive any embassy from, or enter into any con- 
 ference, agreement, alliance, or treaty with any king, 
 prince, or state; nor shall any person holding any office 
 of profit or trust under the United States, or any of 
 them, accept of any present, emolument, office, or title 
 of any kind whatever from any king, prince, or foreign 
 state ; nor shall the United States, in Congress assembled, 
 or any of them, grant any title of nobility. 
 
 No two or more States shall enter into any treaty, 
 confederation, or alliance whatever between them, with- 
 out the consent of the United States, in Congress as- 
 sembled, specifying accurately the purposes for which 
 the same is to be entered into, and how long it shall 
 continue. 
 
 No State shall lay any imposts or duties which may 
 interfere with any stipulations in treaties entered into 
 by the United States, in Congress assembled, with any 
 king, prince, or state, in pursuance of any treaties al- 
 ready proposed by Congress to the courts of France 
 and Spain. 
 
 No vessel of war shall be kept up in time of peace by 
 any State, except such number only as shall be deemed 
 necessary by the United States, in Congress assembled, 
 for the defence of such State or its trade, nor shall any 
 body of forces be kept up by any State in time of peace, 
 except such number only as, in the judgment of the 
 
282 Story of the Constitution 
 
 United States, in Congress assembled, shall be deemed 
 requisite to garrison the forts necessary for the defence 
 of such State; but every State shall always keep up a 
 well-regulated and disciplined militia, suflSciently armed 
 and accoutred, and shall provide and constantly have 
 ready for use in public stores a due number of field- 
 pieces and tents, and a proper quantity of arms, am- 
 munition, and camp equipage. 
 
 No State shall engage in any war without the consent 
 of the United States, in Congress assembled, unless such 
 State be actually invaded by enemies, or shall have re- 
 ceived certain advice of a resolution being formed by 
 some nation of Indians to invade such State, and the 
 danger is so imminent as not to admit of a delay till 
 the United States, in Congress assembled, can be con- 
 sulted; nor shall any State grant commissions to any 
 ships or vessels of war, nor letters of marque or reprisal, 
 except it be after a declaration of war by the United 
 States, in Congress assembled, and then only against the 
 kingdom or state, and the subjects thereof, against which 
 war has been so declared, and under such regulations as 
 shall be established by the United States, in Congress 
 assembled, unless such State be infested by pirates, in 
 which case vessels of war may be fitted out for that 
 occasion, and kept so long as the danger shall continue, 
 or until the United States, in Congress assembled, shall 
 determine otherwise. 
 
 Art. VII. — When land forces are raised by any State 
 for the common defence, all officers of or under the rank 
 of Colonel shall be appointed by the Legislature of each 
 State respectively by whom such forces shall be raised, 
 or in such manner as such State shall direct, and all 
 vacancies shall be filled up by the State which first 
 made the appointment. 
 
 Art. VIII. — All charges of war, and all other expenses 
 that shall be incurred for the common defence, or gen- 
 
The Articles of Confederation 283 
 
 eral welfare, and allowed by the United States, in Con- 
 gress assembled, shall be defrayed out of a common 
 treasury, which shall be supplied by the several States 
 in proportion to the value of all land within each State, 
 granted to, or surveyed for, any person, as such latid 
 and the buildings and improvements thereon shall be 
 estimated, according to such mode as the United States, 
 in Congress assembled, shall, from time to time, direct 
 and appoint. The taxes for paying that proportion shall 
 be laid and levied by the authority and direction of the 
 Legislatures of the several States, within the time agreed 
 upon by the United States, in Congress assembled. 
 
 Art. IX. — The United States, in Congress assembled, 
 shall have the sole and exclusive right and power of de- 
 termining on peace and war, except in the cases men- 
 tioned in the sixth Article; of sending and receiving 
 ambassadors; entering into treaties and alliances, pro- 
 vided that no treaty of commerce shall be made, whereby 
 the legislative power of the respective States shall be 
 restrained from imposing such imposts and duties on 
 foreigners as their own people are subjected to, or from 
 prohibiting the exportation or importation of any species 
 of goods or commodities whatever; of establishing rules 
 for deciding, in all cases, what captures on land and 
 water shall be legal, and in what manner prizes taken 
 by land or naval forces in the service of the United 
 States shall be divided or appropriated; of granting 
 letters of marque and reprisal in times of peace; ap- 
 pointing courts for the trial of piracies and felonies com- 
 mitted on the high seas; and establishing courts for 
 receiving and determining finally appeals in all cases of 
 captures; provided that no member of Congress shall be 
 appointed a judge of any of the said courts. 
 
 The United States, in Congress assembled, shall also 
 be the last resort on appeal in all disputes and dif- 
 ferences now subsisting, or that hereafter may arise 
 
284 Story of the Constitution 
 
 between two or more States concerning boundary, juris- 
 diction, or any other cause whatever; which authority 
 shall always be exercised in the manner following: 
 Whenever the legislative or executive authority, or law- 
 ful agent of any State in controversy with another, shall 
 present a petition to Congress, stating the matter in 
 question, and praying for a hearing, notice thereof shall 
 be given by order of Congress to the legislative or ex- 
 ecutive authority of the other State in controversy, and 
 a day assigned for the appearance of the parties by their 
 lawful agents, who shall then be directed to appoint, by 
 joint consent, commissioners or judges to constitute a 
 court for hearing and determining the matter in ques- 
 tion ; but if they cannot agree, Congress shall name three 
 persons out of each of the United States, and from the 
 list of such persons each party shall alternately strike 
 out one, the petitioners beginning, until the number shall 
 be reduced to thirteen; and from that number not less 
 than seven nor more than nine names, as Congress shall 
 direct, shall, in the presence of Congress, be drawn out 
 by lot; and the persons whose names shall be so drawn, 
 or any five of them, shall be commissioners or judges, to 
 hear and finally determine the controversy, so always as 
 a major part of the judges who shall hear the cause 
 shall agree in the determination; and if either party 
 shall neglect to attend at the day appointed, without 
 showing reasons which Congress shall judge sufficient, 
 or being present, shall refuse to strike, the Congress 
 shall proceed to nominate three persons out of each 
 State, and the secretary of Congress shall strike in be- 
 half of such party absent or refusing; and the judgment 
 and sentence of the court, to be appointed in the man- 
 ner before prescribed, shall be final and conclusive; and 
 if any of the parties shall refuse to submit to the au- 
 thority of such court, or to appear or defend their claim 
 or cause, the court shall nevertheless proceed to pro- 
 
The Articles of Confederation 285 
 
 nounce sentence or judgment, which shall in like man- 
 ner be final and decisive; the judgment or sentence and 
 other proceedings being in either case transmitted to 
 Congress, and lodged among the acts of Congress for the 
 security of the parties concerned; provided, that every 
 commissioner, before he sits in judgment, shall take an 
 oath, to be administered by one of the judges of the 
 supreme or superior court of the State where the cause 
 shall be tried, " well and truly to hear and determine 
 the matter in question, according to the best of his judg- 
 ment, without favor, affection, or hope of reward." Pro- 
 vided, also, that no State shall be deprived of territory 
 for the benefit of the United States. 
 
 All controversies concerning the private right of soil 
 claimed under different grants of two or more States, 
 whose jurisdictions, as they may respect such lands, and 
 the States which passed such grants are adjusted, the 
 said grants or either of them being at the same time 
 claimed to have originated antecedent to such settlement 
 of jurisdiction, shall, on the petition of either party to 
 the Congress of the United States, be finally determined, 
 as near as may be, in the same manner as is before 
 prescribed for deciding disputes respecting territorial 
 jurisdiction between different States. 
 
 The United States, in Congress assembled, shall also 
 have the sole and exclusive right and power of regulating 
 the alloy and value of coin struck by their own authority, 
 or by that of the respective States; fixing the standard 
 of weights and measures throughout the United States; 
 regulating the trade and managing all affairs with the 
 Indians, not members of any of the States; provided 
 that the legislative right of any State, within its own 
 limits, be not infringed or violated; establishing and 
 regulating post-ofiftces from one State to another, through- 
 out all the United States, and exacting such postage on 
 the papers passing through the same as may be requisite 
 
286 Story of the Constitution 
 
 to defray the expenses of the said office; appointing all 
 officers of the land forces in the service of the United 
 States, excepting regimental officers; appointing all the 
 officers of the naval forces, and commissioning all officers 
 whatever in the service of the United States; making 
 rules for the government and regulation of the said land 
 and naval forces, and directing their operations. 
 
 The United States, in Congress assembled shall have 
 authority to appoint a committee, to sit in the recess of 
 Congress, to be denominated " A Committee of the 
 States," and to consist of one delegate from each State, 
 and to appoint such other committees and civil officers 
 as may be necessary for managing the general affairs of 
 the United States under their directions; to appoint 
 one of their number to preside; provided that no person 
 be allowed to serve in the office of president more than 
 one year in any term of three years; to ascertain the 
 necessary sums of money to be raised for the service of 
 the United States, and to appropriate and apply the 
 same for defraying the public expenses ; to borrow money 
 or emit bills on the credit of the United States, trans- 
 mitting every half year to the respective States an ac- 
 count oif the sums of money so borrowed or emitted; to 
 build and equip a navy; to agree upon the number of 
 land forces, and to make requisitions from each State 
 for its quota, in proportion to the number of white in- 
 habitants in such State, which requisition shall be bind- 
 ing; and thereupon the Legislature of each State shall 
 appoint the regimental officers, raise the men, and clothe, 
 arm, and equip them in a soldier-like manner, at the 
 expense of the United States; and the officers and men 
 so clothed, armed, and equipped shall march to the place 
 appointed, and within the time agreed on by the United 
 States, in Congress assembled; but if the United States, 
 in Congress assembled, shall, on consideration of circum- 
 tances, judge proper that any State should not raise 
 
The Articles of Confederation 287 
 
 men, or should raise a smaller number than its quota, 
 and that any other State should raise a greater number 
 of men than the quota thereof, such extra number shall 
 be raised, officered, clothed, armed, and equipped in the 
 same manner as the quota of such State, unless the 
 Legislature of such State shall judge that such extra 
 number can not be safely spared out of the same, in 
 which case they shall raise, officer, clothe, arm, and 
 equip as many of such extra number as they judge can 
 be safely spared, and the officers and men so clothed, 
 armed, and equipped shall march to the place appointed, 
 and within the time agreed on by the United States, in 
 Congress assembled. 
 
 The United States, in Congress assembled, shall never 
 engage in a war, nor grant letters of marque and reprisal 
 in time of peace, nor enter into any treaties or alliances, 
 nor coin money, nor regulate the value thereof, nor as- 
 certain the sums and expenses necessary for the defence 
 and welfare of the United States, or any of them, nor 
 emit bills, nor borrow money on the credit of the United 
 States, nor appropriate money, nor agree upon the num- 
 ber of vessels of war to be built or purchased, or the 
 number of land or sea forces to be raised, nor appoint 
 a commander-in-chief of the army or navy, unless niuci 
 States assent to the same, nor shall a question on any 
 other point, except for adjourning from day to day, be 
 determined, unless by the votes of a majority of the 
 United States, in Congress assembled. 
 
 The Congress of the United States shall have pow.^r 
 to adjourn to any time within the year, and to any place 
 within the United States, so that no period of adjourn- 
 ment be for a longer duration than the space of six 
 months, and shall publish the journal of their proceed- 
 ings monthly, except such parts thereof relating to 
 treaties, alliances, or military operations as in their 
 judgment require secrecy; and the yeas and nays of the 
 
288 Story of the Constitution 
 
 delegates of each State, on any question, shall be entered 
 on the journal when it is desired by any delegate; and 
 the delegates of a State, or any of them, at his or their 
 request, shall be furnished with a transcript of the said 
 journal except such parts as are above excepted, to lay 
 before the Legislatures of the several States. 
 
 Art. X. — The committee of the States, or any nine of 
 them, shall be authorized to execute, in the recess of 
 Congress, such of the powers of Congress as the United 
 States, in Congress assembled, by the consent of nine 
 States, shall, from time to time, think expedient to vest 
 them with; provided that no power be delegated to the 
 said Committee, for the exercise of which, by the Articles 
 of Confederation, the voice of nine States in the Congress 
 of the United States assembled is requisite. 
 
 Art. XI. — Canada, acceding to this Confederation, and 
 joining in the measures of the United States, shall be 
 admitted into, and entitled to all the advantages of this 
 Union; but no other colony shall be admitted into the 
 same, unless such admission be agreed to by nine States. 
 
 Art. XII. — All bills of credit emitted, moneys bor- 
 rowed, and debts contracted by or under the authority 
 of Congress, before the assembling of the United States, 
 in pursuance of the present Confederation, shall be 
 deemed and considered as a charge against the United 
 States, for payment and satisfaction whereof the said 
 United States and the public faith are hereby solemnly 
 pledged. 
 
 Art, XIII. — ^Every State shall abide by the determina- 
 tions of the United States, in Congress assembled, on all 
 questions which by this Confederation are submitted to 
 them. And the Articles of this Confederation shall be 
 inviolably observed by every State, and the Union shall 
 be perpetual; nor shall any alteration at any time 
 hereafter be made in any of them, unless such altera- 
 tion be agreed to in a Congress of the United States, 
 
The Articles of Confederation 289 
 
 and be afterwards conflrmed by the Legislatures of 
 every State. 
 
 And whereas it hath pleased the great Governor of 
 the world to incline the hearts of the Legislatures we 
 respectively represent in Congress to approve of, and to 
 authorize us to ratify, the said Articles of Confederation 
 and perpetual Union, know ye, that we, the undersigned 
 delegates, by virtue of the power and authority to us 
 given for that purpose, do, by these presents, in the name 
 and in behalf of our respective constituents, fully and 
 entirely ratify and confirm each and every of the said 
 Articles of Confederation and perpetual Union, and all 
 and singular the matter and things therein contained. 
 And we do further solemnly plight and engage the faith 
 of our respective constituents, that they shall abide by 
 the determinations of the United States, in Congress 
 assembled, on all questions which by the said Confedera- 
 tion are submitted to them ; and that the Articles thereof 
 shall be inviolably observed by the States we respectively 
 represent, and that the Union shall be perpetual. 
 
 In witness whereof we have hereunto set our hands in 
 Congress. Done at Philadelphia in the State of 
 Pennsylvania the ninth day of July in the year of 
 our Lord one thousand seven hundred and seventy- 
 eight, and in the third year of the independence of 
 America. 
 
 On the part & hehalf of the State of New Hampshire. 
 
 JosiAH Baetlbtt, John Wentworth, Junr. 
 
 August 8, 1778. 
 
290 Story of the Constitution 
 
 On the part and hehalf of the State of Massachusetts Bay. 
 
 John Hancock, Francis Dana, 
 
 Samuel Adams, James Lovell, 
 
 Elbridge Gerry, Samuel Holten. 
 
 On the part and iehalf of the State of Rhode Island and 
 
 Providence Plantations. 
 
 William Ellbrt, John Collins. 
 
 Henry Marchant, 
 
 On the part and hehalf of the State of Connecticut. 
 
 Roger Sherman, Titus Hosmer, 
 
 Samuel Huntington, Andrew Adams. 
 
 Oliver Wolcott, 
 
 On the part and hehalf of the State of New York. 
 
 Jas. Duane, Wm. Duer, 
 
 Fra. Lewis, Gouv. Morris. 
 
 On the part and in hehalf of the State of New Jersey, 
 
 Novr. 26, 1778. 
 
 Jno. Witheespoon, Nathl. Scuddbr. 
 
 On the part and hehalf of the State of Penrisylvania. 
 
 Eobt. Morris, William Clingan, 
 
 Daniel Eobbrdeau, Joseph Keed, 22d July, 
 
 JoNA. Bayard Smith, 1778. 
 
 On the part & hehalf of the State of Delaware. 
 
 Tho. M'Kean, Nicholas Van Dyke. 
 
 Feby. 12, 1779, 
 John Dickinson, 
 
 May 5tli, 1779. 
 
The Articles of Confederation 291 
 
 On the part and iehalf of the State of Maryland. 
 
 John Hanson, Daniel Carroll, 
 
 March 1, 1781. Mar. 1, 1781. 
 
 On the part and hehalf of the State of Virginia. 
 
 Richard Henry Lee, Jno. Harvie, 
 
 John Banister, Francis Lightfoot Leb. 
 
 Thomas Adams, 
 
 On the part and tehalf of the State of No. Carolina, 
 
 John Penn, July 21st, 1778. Jno. Williams. 
 Corns. Harnett, 
 
 On the part & hehalf of the State of South Carolina. 
 
 Henry Laurens, Eichd. Hutson, 
 
 William Henry Drayton, Thos. Hayward, Junr. 
 Jno. Mathews, 
 
 On the part d iehalf of the State of Georgia. 
 
 Jno. Walton, 24tli July, Edwd. Langworthy. 
 
 1778. 
 Edwd. Telfair, 
 
THE CONSTITUTION OF THE UNITED STATES 
 
 We, the people of the United States, in order to form 
 a more perfect union, establish justice, insure domestic 
 tranquillity, provide for the common defence, promote 
 the general welfare, and secure the blessings of liberty 
 to ourselves and our posterity, do ordain and establish 
 this Constitution for the United States of America. 
 
 ARTICLE I. 
 
 SECTION I. 
 
 All legislative powers herein granted shall be vested 
 in a Congress of the United States, which shall consist 
 of a Senate and House of Representatives. 
 
 SECTION II. 
 
 The House of Representatives shall be composed of 
 members chosen every second year by the people of the 
 several States, and the electors in each State shall have 
 the qualifications requisite for electors of the most nu- 
 merous branch of the State legislature. 
 
 No person shall be a Representative who shall not have 
 attained the age of twenty-five years, and been seven 
 years a citizen of the United States, and who shall not, 
 when elected, be an inhabitant of that State in which 
 he shall be chosen. 
 
 Representatives and direct taxes shall be apportioned 
 among the several States which may be included within 
 this Union, according to their respective numbers, which 
 shall be determined by adding to the whole number of 
 
 292 
 
Constitution of the United States 293 
 
 free persons, including those bound to service for a term 
 of years, and excluding Indians not taxed, three fifths 
 of all other persons. The actual enumeration shall be 
 made within three years after the first meeting of the 
 Congress of the United States, and within every sub- 
 sequent term of ten years, in such manner as they shall 
 by law direct. The number of Representatives shall not 
 exceed one for every thirty thousand, but each State 
 shall have at least one Representative; and until such 
 enumeration shall be made, the State of New Hampshire 
 shall be entitled to choose three, Massachusetts eight, 
 Rhode Island and Providence Plantations one, Connecti- 
 cut five, New York six, New Jersey four, Pennsylvania 
 eight, Delaware one, Maryland six, Virginia ten, North 
 Carolina five. South Carolina five, and Georgia three. 
 
 When vacancies happen in the representation from any 
 State, the executive authority thereof shall issue writs 
 of election to fill such vacancies. 
 
 The House of Representatives shall choose their 
 Speaker and other officers, and shall have the sole power 
 of impeachment. 
 
 SECTION HI. 
 
 The Senate of the United States shall be composed of 
 two Senators from each State, chosen by the legislature 
 thereof, for six years; and each Senator shall have one 
 vote. 
 
 Immediately after they shall be assembled in con- 
 sequence of the first election, they shall be divided as 
 equally as may be into three classes. The seats of the 
 Senators of the first class shall be vacated at the ex- 
 piration of the second year; of the second class, at the 
 expiration of the fourth year, and of the third class, at 
 the expiration of the sixth year, so that one-third may 
 be chosen every second year ; and if vacancies happen by 
 
294 Story of the Constitution 
 
 resignation or otherwise during the recess of the legis- 
 lature of any State, the executive thereof may make 
 temporary appointments until the next meeting of the 
 legislature, which shall then fill such vacancies. 
 
 No person shall be a Senator who shall not have at- 
 tained to the age of thirty years, and been nine years 
 a citizen of the United StateSj and who shall not, when 
 elected, be an inhabitant of that State for which he shall 
 be chosen. 
 
 The Vice-President of the United States shall be Presi- 
 dent of the Senate, but shall have no vote, unless they 
 be equally divided. 
 
 The Senate shall choose their other officers, and also 
 a President pro tempore in the absence of the Vice- 
 President, or when he shall exercise the office of Presi- 
 dent of the United States. 
 
 The Senate shall have the sole power to try all im- 
 peachments. When sitting for that purpose, they shall 
 be on oath or affirmation. When the President of the 
 United States is tried, the Chief Justice shall preside: 
 and no person shall be convicted without the concurrence 
 of two thirds of the members present. 
 
 Judgment in cases of impeachment shall not extend 
 further than to removal from office, and disqualification 
 to hold and enjoy any office of honor, trust, or profit 
 under the United States; but the party convicted shall, 
 nevertheless, be liable and subject to indictment, trial, 
 judgment, and punishment, according to law. 
 
 SECTION IV. 
 
 The times, places, and manner of holding elections for 
 Senators and Representatives shall be prescribed in each 
 State by the legislature thereof; but the Congress may 
 at any time by law make or alter such regulations, ex- 
 cept as to the places of choosing Senators. 
 
Constitution of the United States 295 
 
 The Congress shall assemble at least once in every 
 year, and such meeting shall be on the first Monday in 
 December, unless they shall by law appoint a different 
 day. 
 
 SECTION V. 
 
 Each house shall be the judge of the elections, returns, 
 and qualifications of its own members, and a majority of 
 each shall constitute a quorum to do business; but a 
 smaller number may adjourn from day to day, and may 
 be authorized to compel the attendance of absent mem- 
 bers, in such manner, and under such penalties, as each 
 house may provide. 
 
 Each house may determine the rules of its proceeding, 
 punish its members for disorderly behavior, and with the 
 concurrence of two thirds, expel a member. 
 
 Each house shall keep a journal of its proceedings, and 
 from time to time publish the same, excepting such parts 
 as may in their judgment require secrecy, and the yeas 
 and nays of the members of either house on any question 
 shall, at the desire of one fifth of those present, be 
 entered on the journal. 
 
 Neither house, during the session of Congress, shall, 
 without the consent of the other, adjourn for more than 
 three days, nor to any other place than that in which 
 the two houses shall be sitting. 
 
 SECTION VI. 
 
 The Senators and Representatives shall receive a com- 
 pensation for their services, to be ascertained by law and 
 paid out of the Treasury of the United States. They 
 shall, in all cases except treason, felony, and breach of 
 the peace, be privileged from arrest during their at- 
 tendance at the session of their respective houses, and 
 in going to and returning from the same; and for any 
 
296 Story of the Constitution 
 
 speech or debate in either house they shall not be ques- 
 tioned in any other place. 
 
 No Senator or Eepresentative shall, during the time 
 for which he was elected, be appointed to any civil oflSce 
 under the authority of the United States, which shall 
 have been created, or the emoluments whereof shall have 
 been increased during such time; and no person holding 
 any ofiftce under the United States shall be a member of 
 either house during his continuance in ofiflce. 
 
 SECTION VII. 
 
 All bills for raising revenue shall originate in the 
 House of Representatives; but the Senate may propose 
 or concur with amendments as on other bills. 
 
 Every bill which shall have passed the House of Repre- 
 sentatives and the Senate shall, before it become a law, 
 be presented to the President of the United States ; if he 
 approve he shall sign it, but if not he shall return it, 
 with his objections, to that house in which it shall have 
 originated, who shall enter the objections at large on 
 their journal and proceed to reconsider it. If after such 
 reconsideration two thirds of that house shall agree to 
 pass the bill, it shall be sent, together with the objections, 
 to the other house, by which it shall likewise be recon- 
 sidered, and if approved by two thirds of that house it 
 shall become a law. But in all such cases the votes of 
 both houses shall be determined by yeas and nays, and 
 the names of the persons voting for and against the bill 
 shall be entered on the journal of each house respectively. 
 If any bill shall not be returned by the President within 
 ten days (Sundays excepted) after it shall have been 
 presented to him, the same shall be a law, in like man- 
 ner as if he had signed it, unless the Congress by their 
 adjournment prevent its return, in which case it shall 
 not be a law. 
 
Constitution of the United States 297 
 
 Every order, resolution, or vote to which the concur- 
 rence of the Senate and House of Representatives may 
 be necessary (except on a question of adjournment) shall 
 be presented to the President of the United States; and 
 before the same shall take effect, shall be approved by 
 him, or being disapproved by him, shall be repassed by 
 two thirds of the Senate and House of Representatives, 
 according to the rules and limitations prescribed in the 
 case of a bill. 
 
 SECTION VIII. 
 
 The Congress shall have power to lay and collect taxes, 
 duties, imposts, and excises, to pay the debts and provide 
 for the common defence and general welfare of the United 
 States; but all duties, imposts, and excises shall be uni- 
 form throughout the United States; 
 
 To borrow money on the credit of the United States ; 
 
 To regulate commerce with foreign nations and among 
 the several States, and with the Indian tribes; 
 
 To establish an uniform rule of naturalization, and 
 uniform laws on the subject of bankruptcies throughout 
 the United States; 
 
 To coin money, regulate the value thereof, and of 
 foreign coin, and fix the standard of weights and 
 measures ; 
 
 To provide for the punishment of counterfeiting the 
 securities and current coin of the United States; 
 
 To establish post-oflfices and post-roads; 
 
 To promote the progress of science and useful arts by 
 securing for limited times to authors and inventors the 
 exclusive right to their respective writings and discov- 
 eries ; 
 
 To constitute tribunals inferior to the Supreme Court ; 
 
 To define and punish piracies and felonies committed 
 on the high seas and offences against the law of nations ; 
 
298 Story of the Constitution 
 
 To declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water ; 
 
 To raise and support armies, but no appropriation of 
 money to that use shall be for a longer term than two 
 years ; 
 
 To provide and maintain a navy; 
 
 To make rules for the government and regulation of 
 the land and naval forces; 
 
 To provide for calling forth the militia to execute the 
 laws of the Union, suppress insurrections, and repel 
 invasions ; 
 
 To provide for organizing, arming, and disciplining 
 the militia, and for governing such part of them as may 
 be employed in the service of the United States, reserving 
 to the States respectively the appointment of the ofiicers, 
 and the authority of training the militia according to 
 the discipline prescribed by Congress; 
 
 To exercise exclusive legislation in all cases whatsoever 
 over such district (not exceeding ten miles square) as 
 may, by cession of particular States and the acceptance 
 of Congress, become the seat of the Government of the 
 United States, and to exercise like authority over all 
 places purchased by the consent of the legislature of the 
 State in which the same shall be, for the erection of 
 forts, magazines, arsenals, dockyards, and other needful 
 buildings; and 
 
 To make all laws which shall be necessary and proper 
 for carrying into execution the foregoing powers, and 
 all other powers vested by this Constitution in the Gov- 
 ernment of the United States, or in any department or 
 officer thereof. 
 
 SECTION IX. 
 
 The migration or importation of such persons as any 
 of the States now existing shall think proper to admit 
 shall not be prohibited by the Congress prior to the year 
 
Constitution of the United States 299 
 
 one thousand eight hundred and eight, but a tax or duty 
 may be imposed on such importation, not exceeding ten 
 dollars for each person. 
 
 The privilege of the writ of habeas corpus shall not 
 be suspended, unless when in cases of rebellion or in- 
 vasion the public safety may require it. 
 
 No bill of attainder or ex post facto law shall be 
 passed. 
 
 No capitation or other direct tax shall be laid, unless 
 in proportion to the census or enumeration hereinbefore 
 directed to be taken. 
 
 No tax or duty shall be laid on articles exported from 
 any State. 
 
 No preference shall be given by any regulation of com- 
 merce or revenue to the ports of one State over those of 
 another; nor shall vessels bound to or from one State be 
 obliged to enter, clear, or pay duties in another. 
 
 No money shall be drawn from the Treasury but in 
 consequence of appropriations made by law; and a regu- 
 lar statement and account of the receipts and expendi- 
 tures of all public money shall be published from time 
 to time. 
 
 No title of nobility shall be granted by the United 
 States; and no person holding any office of profit or 
 trust under them shall, without the consent of the Con- 
 gress, accept of any present, emolument, office, or title, 
 of any kind whatever from any king, prince, or foreign 
 State. 
 
 SECTION X. 
 
 No State shall enter into any treaty, alliance, or con- 
 federation; grant letters of marque and reprisal; coin 
 money; emit bills of credit; make anything but gold and 
 silver coin a tender in payment of debts; pass any bill 
 of attainder, ex post facto law, or law impairing the 
 obligation of contracts, or grant any title of nobility. 
 
300 Story of the Constitution 
 
 No state shall, without the consent of Congress, lay 
 any imposts or duties on imports or exports, except what 
 may be absolutely necessary for executing its inspection 
 laws; and the net produce of all duties and imposts, 
 laid by any State on imports or exports, shall be for 
 the use of the Treasury of the United States; and all 
 such laws shall be subject to the revision and control of 
 the Congress. 
 
 No State shall, without the consent of Congress, lay 
 any duty of tonnage, keep troops or ships of war in time 
 of peace, enter into any agreement or compact with an- 
 other State or with a foreign power, or engage in war, 
 unless actually invaded or in such imminent danger as 
 will not admit of delay. 
 
 ARTICLE II. 
 
 SECTION I. 
 
 The executive power shall be vested in a President of 
 the United States of America. He shall hold his oflSce 
 during the term of four years, and together with the 
 Vice-President, chosen for the same term, be elected as 
 follows : 
 
 Each State shall appoint, in such manner as the legis- 
 lature thereof may direct, a number of electors, equal 
 to the whole number of Senators and Representatives to 
 which the State may be entitled in the Congress ; but no 
 Senator or Representative, or person holding an office 
 of trust or profit under the United States, shall be 
 appointed an elector. 
 
 [The electors shall meet in their respective States and 
 vote by ballot for two persons, of whom one at least shall 
 not be an inhabitant of the same State with themselves. 
 And they shall make a list of all the persons voted for, 
 and of the number of votes for each; which list they 
 shall sign and certify, and transmit sealed to the seat 
 
Constitution of the United States 301 
 
 of government of the United States, directed to the 
 President of the Senate. The President of the Senate 
 shall, in the presence of the Senate and House of Repre- 
 sentatives, open all the certificates, and the votes shall 
 then be counted. The person having the greatest number 
 of votes shall be the President, if such number be a 
 majority of the whole number of electors appointed; and 
 if there be more than one who have such majority, and 
 have an equal number of votes, then the House of Repre- 
 sentatives shall immediately choose by ballot one of them 
 for President; and if no person have a majority, then 
 from the five highest on the list the said House shall in 
 like manner choose the President. But in choosing the 
 President the votes shall be taken by States, the repre- 
 sentation from each State having one vote ; a quorum for 
 this purpose shall consist of a member or members from 
 two thirds of the States, and a majority of all the States 
 shall be necessary to a choice. In every case, after the 
 choice of the President, the person having the greatest 
 number of votes of the electors shall be the Vice- 
 President. But if there should remain two or more who 
 have equal votes, the Senate shall choose from them by 
 ballot the Vice-President.] ^ 
 
 The Congress may determine the time of choosing the 
 electors and the day on which they shall give their votes, 
 which day shall be the same throughout the United 
 States. 
 
 No person except a natural-born citizen, or a citizen 
 of the United States at the time of the adoption of this 
 Constitution, shall be eligible to the office of President; 
 neither shall any person be eligible to that office who 
 shall not have attained to the age of thirty-five years, 
 and been fourteen years a resident within the United 
 States. 
 
 1 This clause of the Constitution has been amended. See 
 twelfth article of the amendments. 
 
302 Story of the Constitution 
 
 In case of the removal of the President from office, or 
 of his death, resignation, or inability to discharge the 
 powers and duties of the said office, the same shall de- 
 volve on the Vice-President, and the Congress may by 
 law provide for the case of removal, death, resignation, 
 or inability, both of the President and Vice-President, 
 declaring what officer shall then act as President, and 
 such officer shall act accordingly until the disability be 
 removed or a President shall be elected. 
 
 The President shall, at stated times, receive for his serv- 
 ices a compensation, which shall neither be increased nor 
 diminished during the period for which he may have been 
 elected, and he shall not receive within that period any 
 other emolument from the United States or any of them. 
 
 Before he enter on the execution of his office he shall 
 take the following oath or affirmation : 
 
 " I do solemnly swear (or affirm) that I will faithfully 
 execute the office of President of the United States, and 
 will to the best of my ability preserve, protect, and defend 
 the Constitution of the United States." 
 
 SECTION II. 
 
 The President shall be Commander-in-chief of the 
 Army and Navy of the United States, and of the militia 
 of the several States when called into the actual service 
 of the United States; he may require the opinion, in 
 writing, of the principal officer in each of the executive 
 departments, upon any subject relating to the duties of 
 their respective offices, and he shall have power to grant 
 reprieves and pardons for offences against the United 
 States, except in cases of impeachment. 
 
 He shall have power, by and with the advice and con- 
 sent of the Senate, to make treaties, provided two thirds 
 of the Senators present concur; and he shall nominate, 
 and, by and with the advice and consent of the Senate, 
 
Constitution of the United States 303 
 
 shall appoint ambassadors, other public ministers and 
 consuls, judges of the Supreme Court, and all other 
 officers of the United States, whose appointments are 
 not herein otherwise provided for, and which shall be 
 established by law; but the Congress may by law vest 
 the appointment of such inferior officers, as they think 
 proper, in the President alone, in the courts of law, or 
 in the heads of departments. 
 
 The President shall have power to fill up all vacancies 
 that may happen during the recess of the Senate, by 
 granting commissions which shall expire at the end of 
 their next session. 
 
 SECTION III. 
 
 He shall from time to time give to the Congress in- 
 formation of the state of the Union, and recommend to 
 their consideration such measures as he shall judge neces- 
 sary and expedient; he may, on extraordinary occasions, 
 convene both houses, or either of them, and in case of 
 disagreement between them with respect to the time of 
 adjournment, he may adjourn them to such time as he 
 shall think proper; he shall receive ambassadors and 
 other public ministers; he shall take care that the laws 
 be faithfully executed, and shall commission all the 
 officers of the United States. 
 
 SECTION IV. 
 
 The President, Vice-President, and all civil officers of 
 the United States shall be removed from office on im- 
 peachment for and conviction of treason, bribery, or 
 other high crimes and misdemeanors. 
 
 AETICLE III, 
 
 SECTION I. 
 
 The judicial power of the United States shall be vested 
 
304 Story of the Constitution 
 
 in one Supreme Courtj and in such inferior courts as the 
 Congress may from time to time ordain and establish. 
 The judges, both of the supreme and inferior courts, shall 
 hold their offices during good behavior and shall, at 
 stated times, receive for their services a compensation 
 which shall not be diminished during their continuance 
 in ofQoe. 
 
 SECTION II. 
 
 The judicial power shall extend to all cases, in law and 
 equity, arising under this Constitution, the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority; to all cases affecting ambassadors, 
 other public ministers, and consuls; to all cases of ad- 
 miralty and maritime jurisdiction; to controversies to 
 which the United States shall be a party ; to controversies 
 between two or more States; between a State and citi- 
 zens of another State; between citizens of different 
 States ; between citizens of the same State claiming lands 
 under grants of different States, and between a State, 
 or the citizens thereof, and foreign States, citizens, or 
 subjects. 
 
 In all cases affecting ambassadors, other public minis- 
 ters and consuls, and those in which a State shall be a 
 party, the Supreme Court shall have original jurisdiction. 
 In all the other cases before mentioned the Supreme 
 Court shall have appellate jurisdiction, both as to law 
 and fact, with such exceptions and under such regu- 
 lations as the Congress shall make. 
 
 The trial of all crimes, except in cases of impeachment, 
 shall be by jury; and such trial shall be held in the 
 State where the said crimes shall have been committed; 
 but when not committed within any State, the trial 
 shall be at such place or places as the Congress may by 
 law have directed. 
 
Constitution of the United States 305 
 
 SECTION III. 
 
 Treason against the United States shall consist only in 
 levying war against them, or in adhering to their enemies, 
 giving them aid and comfort. No person shall be con- 
 victed of treason unless on the testimony of two witnesses 
 to the same overt act, or on confession in open court. 
 
 The Congress shall have power to declare the punish- 
 ment of treason, but no attainder of treason shall work 
 corruption of blood or forfeiture except during the life of 
 the person attainted. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 Full faith and credit shall be given in each State to the 
 public acts, recoi'ds, and judicial proceedings of every 
 other State. And the Congress may by general laws 
 prescribe the manner in which such acts, records, and 
 proceedings shall be proved, and the effect thereof. 
 
 SECTION II. 
 
 The citizens of each State shall be entitled to all privi- 
 leges and immunities of citizens in the several States. 
 
 A person charged in any State with treason, felony, or 
 other crime, who shall flee from justice, and be found in 
 another State, shall, on demand of the executive authority 
 of the State from which he fled, be delivered up, to be 
 removed to the State having jurisdiction of the crime. 
 
 No person held to service or labor in one State, under 
 the laws thereof, escaping into another, shall, in con- 
 sequence of any law or regulation therein, be discharged 
 from such service or labor, but shall be delivered up on 
 claim of the party to whom such service or labor may 
 be due. 
 
3o6 Story of the Constitution 
 
 SECTION III. 
 
 New states may be admitted by the Congress into this 
 Union; but no new State shall be formed or erected 
 within the jurisdiction of any other State; nor any State 
 be formed by the junction of two or more States or parts 
 of States, without the consent of the legislatures of the 
 States concerned as well as of the Congress. 
 
 The Congress shall have power to dispose of and make 
 all needful rules and regulations respecting the territory 
 or other property belonging to the United States; and 
 nothing in this Constitution shall be so construed as 
 to prejudice any claims of the United States or of any 
 particular State. 
 
 SECTION IV. 
 
 The United States shall guarantee to every State in 
 this Union a republican form of government, and shall 
 protect each of them against invasion, and on application 
 of the legislature, or of the executive (when the legisla- 
 ture cannot be convened), against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, whenever two thirds of both houses shall 
 deem it necessary, shall propose amendments to this Con- 
 stitution, or, on the application of the legislatures of 
 two thirds of the several States, shall call a convention 
 for proposing amendments, which in either case shall be 
 valid to all intents and purposes as part of this Consti- 
 tution, when ratified by the legislatures of three fourths 
 of the several States, or by conventions in three fourths 
 thereof, as the one or the other mode of ratification may 
 be proposed by the Congress, provided that no amend- 
 ments which may be made prior to the year one thou- 
 sand eight hundred and eight shall in any manner affect 
 
Constitution of the United States 307 
 
 the first and fourth clauses in the ninth section of the 
 first article ; and that no State, without its consent, shall 
 be deprived of its equal suffrage in the Senate. 
 
 ARTICLE VI. 
 
 All debts contracted and engagements entered into, be- 
 fore the adoption of this Constitution, shall be as valid 
 against the United States under this Constitution as 
 under the confederation. 
 
 This Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treat- 
 ies made, or which shall be made, under the authority 
 of the United States, shall be the supreme law of the 
 land; and the judges in every State shall be bound 
 thereby, anything in the Constitution or laws of any 
 State to the contrary notwithstanding. 
 
 The Senators and Representatives before mentioned, 
 and the members of the several State legislatures, and 
 all executive and judicial officers both of the United 
 States and of the several States, shall be bound by oath 
 or affirmation to support this Constitution ; but no relig- 
 ious test shall ever be required as a qualification to any 
 office or public trust under the United States. 
 
 ARTICLE VII. 
 
 The ratification of the conventions of nine States shall 
 be sufficient for the establishment of this Constitution 
 between the States so ratifying the same. 
 
 Done in convention by the unanimous consent of the 
 States present, the seventeenth day of September, in 
 the year of our Lord one thousand seven hundred 
 and eighty-seven, and of the independence of the 
 United States of America the twelfth. In witness 
 whereof, we have hereunto subscribed our names. 
 
3o8 Story of the Constitution 
 
 George Washington, President, and Deputy from Vir- 
 ginia. 
 
 New Hampshire — John Langdon, Nicholas Gilman. 
 
 Massachusetts — Nathaniel Gorham, Eufus King. 
 
 Connecticut — William Samuel Johnson, Roger Sherman. 
 
 New York — Alexander Hamilton. 
 
 New Jersey — William Livingston, David Brearly, Wil- 
 liam Paterson, Jonathan Dayton. 
 
 Pennsylvania — Benjamin Franklin, Thomas Mifflin, 
 Eobert Morris, George Glymer, Thomas Fitzsimons, 
 Jared Ingersoll, James Wilson, Gouverneur Morris. 
 
 Delaware — George Eead, Gunning Bedford, Jr., John 
 Dickinson, Richard Bassett, Jacob Broom. 
 
 Maryland — James McHenry, Daniel of St. Thomas 
 Jenifer, Daniel Carroll. 
 
 Virginia — John Blair, James Madison, Jr. 
 
 North Carolina — William Blount, Richard Dobbs 
 Spaight, Hugh Williamson. 
 
 South Carolina — John Eutledge, Charles Cotesworth 
 Pinckney, Charles Pinckney, Pierce Butler. 
 
 Georgia — William Few, Abraham Baldwin. 
 
 Attest: William Jackson, Secretary. 
 
 AMENDMENTS 
 ARTICLE I. 
 
 Congress shall make no law respecting an establish- 
 ment of religion, or prohibiting the free exercise thereof ; 
 or abridging the freedom of speech or of the press; or 
 the right of the people peaceably to assemble, and to 
 petition the government for a redress of grievances. 
 
 ARTICLE II. 
 A well-regulated militia being necessary to the security 
 
Constitution of the United States 309 
 
 of a free State, the right of the people to keep and bear 
 arms shall not be infringed. 
 
 ARTICLE III. 
 
 No soldier shall, in time of peace, be quartered in any 
 house without the consent of the owner, nor in time of 
 war, but in a manner to be prescribed by law. 
 
 ARTICLE IV. 
 
 The right of the people to be secure in their persons, 
 houses, papers, and efiEects, against unreasonable searches 
 and seizures, shall not be violated, and no warrants shall 
 issue but upon probable cause, supported by oath or af- 
 firmation, and particularly describing the place to be 
 searched, and the person or things to be seized. 
 
 ARTICLE V. 
 
 No person shall be held to answer for a capital or 
 otherwise infamous crime, unless on a presentment or 
 indictment of a grand jury, except in cases arising in 
 the land or naval forces, or in the militia, when in actual 
 service in time of war or public danger; nor shall any 
 person be subject for the same offence to be twice put 
 in jeopardy of life or limb; nor shall be compelled in 
 any criminal case to be a witness against himself, nor 
 be deprived of life, liberty, or property, without due 
 process of law; nor shall private property be taken for 
 public use without just compensation. 
 
 ARTICLE VI. 
 
 In all criminal prosecutions the accused shall enjoy 
 the right to a speedy and public trial, by an impartial 
 jury of the State and district wherein the crime shall 
 have been committed, which district shall have been pre- 
 
3IO Story of the Constitution 
 
 viously ascertained by law, and to be informed of the 
 nature and cause of the accusation; to be confronted 
 with the witnesses against him; to have compulsory pro- 
 cess for obtaining witnesses in his favor, and to have 
 the assistance of counsel for his defence. 
 
 ARTICLE VII. 
 
 In suits at common law, where the value in controversy 
 shall exceed twenty dollars, the right of trial by jury 
 shall be preserved, and no fact tried by a jury shall 
 be otherwise re-examined in any court of the United 
 States, than according to the rules of the common law. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive fines 
 imposed, nor cruel and unusual punishments inflicted. 
 
 ARTICLE IX. 
 
 The enumeration in the Constitution of certain rights 
 shall not be construed to deny or disparage others 
 retained by the people. 
 
 ARTICLE X. 
 
 The powers not delegated to the United States by the 
 Constitution, nor prohibited by it to the States, are re- 
 served to the States respectively or to the people. 
 
 ARTICLE XI. 
 
 The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity, com- 
 menced or prosecuted against one of the United States 
 by citizens of another State, or by citizens or subjects 
 of any foreign State. 
 
Constitution of the United States 31^ 
 
 ARTICLE XII. 
 
 The electors shall meet in their respective States and 
 vote by ballot for President and Vice-President, one of 
 whom, at least, shall not be an inhabitant of the same 
 State with themselves ; they shall name in their ballots the 
 person voted for as President, and in distinct ballots the 
 person voted for as Vice-President, and they shall make 
 distinct lists of all persons voted for as President and of 
 all persons voted for as Vice-President, and of the number 
 of votes for each; which lists they shall sign and certify, 
 and transmit sealed to the seat of the government of the 
 United States, directed to the President of the Senate. 
 The President of the Senate shall, in the presence of the 
 Senate and House of Representatives, open all the cer- 
 tificates and the votes shall then be counted. The person 
 having the greatest number of votes for President shall 
 be the President, if such number be a majority of the 
 whole number of electors appointed; and if no person 
 have such majority, then from the persons having the 
 highest numbers not exceeding three on the list of those 
 voted for as President, the House of Representatives shall 
 choose immediately, by ballot, the President. But in 
 choosing the President the votes shall be taken by States, 
 the representation from each State having one vote; a 
 quorum for this purpose shall consist of a member or mem- 
 bers from two thirds of the States, and a majority of all 
 the States shall be necessary to a choice. And if the House 
 of Representatives shall not choose a President when- 
 ever the right of choice shall devolve upon them, before 
 the fourth day of March next following, then the Vice- 
 President shall act as President, as in the case of the 
 death or other constitutional disability of the President. 
 
 The person having the greatest number of votes as 
 Vice-President shall be the Vice-President, if such num- 
 ber be a majority of the whole number of electors ap- 
 
312 Story of the Constitution 
 
 pointed ; and if no person have a majority, then from the 
 two highest numbers on the list the Senate shall choose 
 the Vice-President; a quorum for the purpose shall con- 
 sist of two thirds of the whole number of Senators, and 
 a majority of the whole number shall be necessary to a 
 choice. But no person constitutionally ineligible to the 
 office of President shall be eligible to that of Vice- 
 President of the United States. 
 
 ARTICLE XIII. 
 
 Section 1. Neither slavery nor involuntary servitude, 
 except as a punishment for crime whereof the party shall 
 have been duly convicted, shall exist within the United 
 States or any place subject to their jurisdiction. 
 
 Section 2. Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 ARTICLE XIV. 
 
 Section 1. All persons born or naturalized in the 
 United States, and subject to the jurisdiction thereof, 
 are citizens of the United States and of the State wherein 
 they reside. No State shall make or enforce any law 
 which shall abridge the privileges or immunities of citi- 
 zens of the United States; nor shall any State deprive 
 any person of life, liberty, or property, without due pro- 
 cess of law ; nor deny to any person within its jurisdiction 
 the equal protection of the laws. 
 
 Section 2. Representatives shall be apportioned 
 among the several States according to their respective 
 numbers, counting the whole number of persons in each 
 State, excluding Indians not taxed. But when the right 
 to vote at any election for the choice of electors for 
 President and Vice-President of the United States, Rep- 
 resentatives in Congress, the executive and judicial officers 
 of a State, or the members of the legislature thereof, is 
 
Constitution of the United States 313 
 
 denied to any of the male inhabitants of such State, 
 being twenty-one years of age, and citizens of the United 
 States, or in any way abridged, except for participation 
 in rebellion, or other crime, the basis of representation 
 therein shall be reduced in the proportion which the 
 number of such male citizens shall bear to the whole 
 number of male citizens twenty-one years of age in such 
 State. 
 
 Section 3. No person shall be a Senator or Represen- 
 tative in Congress, or elector of President and Vice- 
 President, or hold any ofiQce, civil or military, under the 
 United States or under any State, who, having previously 
 taken an oath as a member of Congress, or as an officer of 
 the United States, or as a member of any State legisla- 
 ture, or as an executive or judicial officer of any State, 
 to support the Constitution of the United States, shall 
 have engaged in insurrection or rebellion against the 
 same, or given aid or comfort to the enemies thereof. 
 But Congress may, by a vote of two thirds of each 
 house, remove such disability. 
 
 Section 4. The validity of the public debt of the 
 United States, authorized by law, including debts in- 
 curred for payment of pensions and bounties for services 
 in suppressing insurrection or rebellion, shall not be 
 questioned. But neither the United States nor any State 
 shall assume or pay any debt or obligation incurred in 
 aid of insurrection or rebellion against the United States, 
 or any claim for the loss or emancipation of any slave; 
 but all such debts, obligations, and claims shall be held 
 illegal and void. 
 
 Section 5. The Congress shall have power to enforce, 
 by appropriate legislation, the provisions of this article. 
 
 ARTICLE XV. 
 
 Section 1. The right of citizens of the United States 
 
314 Story of the Constitution 
 
 to vote shall not be denied or abridged by the United 
 States or by any State on account of race, color, or 
 previous condition of servitude. 
 
 Section 2. The Congress shall have power to enforce 
 this article by appropriate legislation. 
 
JEFFERSON'S OPINION ON THE CONSTITUTION- 
 ALITY OF A NATIONAL BANK 
 
 I CONSIDER the foundation of the Constitution as laid 
 on this ground : That " all powers not delegated to the 
 United States, by the Constitution, nor prohibited by it 
 to the States, are reserved to the States or to the people." 
 (Xllth amendment.) To take a single step beyond the 
 boundaries thus specially drawn around the powers of 
 Congress, is to take possession of a boundless field of 
 power, no longer susceptible of any definition. 
 
 The incorporation of a bank, and the powers assumed 
 by this bill, have not, in my opinion, been delegated to 
 the United States, by the Constitution. 
 
 1. They are not among the powers specially enumer- 
 ated: for these are: 1st. A power to lay taxes for the 
 purpose of paying the debts of the United States; but 
 no debt is paid by this bill nor any tax laid. Were it 
 a bill to raise money, its origination in the Senate would 
 condemn it by the Constitution. 
 
 2. "To borrow money." But this bill neither borrows 
 money nor insures the borrowing it. . . . 
 
 3. To " regulate commerce with foreign nations, and 
 among the States, and with the Indian tribes." To erect 
 a bank, and to regulate commerce, are very different 
 acts. He who erects a bank, creates a subject of com- 
 merce in its bills; so does he who makes a bushel of 
 wheat, or digs a dollar out of the mines; yet neither of 
 these persons regulates commerce thereby. . . . 
 
 315 
 
3i6 Story of the Constitution 
 
 II. Nor are they within either of the general phrases, 
 which are the two following : 
 
 1. To lay taxes to provide for the general welfare of 
 the United States, that is to say, " to lay taxes for the 
 purpose of proTiding for the general welfare." For the lay- 
 ing of taxes is the power, and the general welfare the 
 purpose for which the power is to be exercised. They 
 are not to lay taxes ad libitum for any purpose they 
 please; but only to pay the detts or provide for the 
 welfare of the Union. In like manner they are not to 
 do anything they please to provide for the general wel- 
 fare, but only to lay tames for that purpose. To con- 
 sider the latter phrase, not as describing the purpose of 
 the first, but as giving a distinct and independent power 
 to do any act they please, which might be for the good 
 of the Union, would render all the preceding and sub- 
 sequent enumerations of power completely useless. 
 
 It would reduce the whole instrument to a single 
 phrase, that of instituting a Congress with power to do 
 whatever would be for the good of the United States; 
 and, as they would be the sole judges of the good or evil, it 
 would be also a power to do whatever evil they please. . . . 
 
 2. The second general phrase is " to make all laws 
 necessary and proper for carrying into execution the 
 enumerated powers." But they can all be carried into 
 execution without a bank. A bank therefore is not neces- 
 sary, and consequently not authorized by this phrase. 
 
 It has been urged that a bank will give great facility 
 or convenience in the collection of taxes. Suppose this 
 were true: yet the Constitution allows only the means 
 which are " necessary," not those which are merely " con- 
 venient" for effecting the enumerated powers. If such 
 a latitude of construction be allowed to this phrase as 
 to give any non-enumerated power, it will go to every 
 one, for there is not one which ingenuity may not tor- 
 ture into a convenience in some instance or other, to 
 
Jefferson's Opinion on National Bank 317 
 
 someone of so long a list of enumerated powers. It 
 would swallow up all the delegated powers, and reduce 
 the whole to one power, as before observed. Therefore it 
 was that the Constitution restrained them to the neces- 
 sary means, that is to say, to those means without which 
 the grant of power would be nugatory. 
 
HAMILTON'S OPINION AS TO THE CONSTITU- 
 TIONALITY OF THE BANK OF THE UNITED 
 
 STATES 
 
 The Secretary of the Treasury having perused with at- 
 tention the papers containing the opinions of the Secre- 
 tary of State and Attorney-General, concerning the 
 constitutionality of the bill establishing a National Bank, 
 proceeds, according to the order of the President, to 
 submit the reasons which have induced him to entertain 
 a different opinion. . . . 
 
 In entering upon the argument, it ought to be pre- 
 mised that the objections of the Secretary of State and 
 Attorney-General are founded on a general denial of the 
 authority of the United States to erect corporations. 
 The latter, indeed, expressly admits, that if there be 
 anything in the bill which is not warranted by the 
 Constitution, it is the clause of incorporation. 
 
 Now it appears to the Secretary of the Treasury that 
 this general principle is inherent in the very definition 
 of government, and essential to every step of progress 
 to be made by the United States, namely: That every 
 power vested in a government is in its nature sovereign, 
 and includes, by force of the term, a right to employ all 
 the means requisite and fairly applicable to the attain- 
 ment of the ends of such power, and which are not pre- 
 cluded by restrictions and exceptions specified in the 
 Constitution, or not immoral, or not contrary to the 
 essential ends of political society. 
 
 318 
 
Hamilton's Opinion on National Bank 319 
 
 This principle, in its application to government in gen- 
 eral, would be admitted as an axiom; and it will be 
 incumbent upon those who may incline to deny it, to 
 prove a distinction, and to show that a rule which, in 
 the general system of things, is essential to the pre- 
 servation of the social order, is inapplicable to the United 
 States. 
 
 The circumstance that the powers of sovereignty are 
 in this country divided between the National and State 
 governments, does not afiford the distinction required. 
 It does not follow from this, that each of the portion of 
 powers delegated to the one or to the other, is not sov- 
 ereign with regard to its proper oljects. It will only 
 follow from it, that each has sovereign power as to certain 
 things, and not as to other things. To deny that the 
 Government of the United States has sovereign power, 
 as to its declared purposes and trusts, because its power 
 does not extend to all cases, would be equally to deny 
 that the State governments have sovereign power in any 
 case, because their power does not extend to every case. 
 The tenth section of the first article of the Constitution 
 exhibits a long list of very important things which they 
 may not do. And thus the United States would furnish 
 the singular spectacle of a political society without 
 sovereignty, or of a people governed, without government. 
 
 If it would be necessary to bring proof to a proposition 
 so clear, as that which affirms that the powers of the 
 Federal Government, as to its ohjects, were sovereign, 
 there is a clause of its Constitution which would be de- 
 cisive. It is that which declares that the Constitution, 
 and the laws of the United States made in pursuance of 
 it, and all treaties made, or which shall be made, under 
 their authority, shall be the supreme law of the land. 
 The power which can create the supreme law of the land 
 in any case, is doubtless sovereign as to such case. 
 
320 Story of the Constitution 
 
 The first of these arguments [that is, against the power 
 of the Federal Government to erect corporations] is, 
 that the foundation of the Constitution is laid on this 
 ground : " That all powers not delegated to the United 
 8tates by the Constitution, nor prohibited to it by the 
 States, are reserved for the States, or to the people." 
 Whence it is meant to be inferred, that Congress can 
 in no case exercise any power not included in those not 
 enumerated in the Constitution. And it is affirmed, that 
 the power of erecting a corporation is not included in 
 any of the enumerated powers. 
 
 The main proposition here laid down, in its true sig- 
 nification is not to be questioned. It is nothing more 
 than a consequence of this republican maxim, that all 
 government is a delegation of power. But how much 
 is delegated in each case, is a question of fact, to be 
 made out by fair reasoning and construction, upon the 
 particular provisions of the Constitution, taking as 
 guides the general principles and general ends of 
 governments. 
 
 It is not denied that there are implied as well as 
 express powers, and that the former are as effectually 
 delegated as the latter. And for the sake of accuracy 
 it shall be mentioned, that there is another class of 
 powers, which may be properly denominated resulting 
 powers. It will not be doubted, that if the United States 
 should make a conquest of any of the territories of its 
 neighbors, they would possess sovereign jurisdiction over 
 the conquered territory. This would be rather a result, 
 from the whole mass of the powers of the government, 
 and from the nature of political society, than a con- 
 sequence of either of the powers specially enumerated. 
 
 But be this as it may, it furnishes a striking illustra- 
 tion of the general doctrine contended for; it shows an 
 extensive case, in which a power of erecting corporations 
 is either implied in, or would result from, some or all 
 
Hamilton's Opinion on National Bank 321 
 
 of the powers vested in the National Government. The 
 jurisdiction acquired over such conquered country would 
 certainly be competent to any species of legislation. 
 
 To this mode of reasoning respecting the right of em- 
 ploying all the means requisite to the execution of the 
 specified powers of the Government, it is objected, that 
 none but necessary and proper means are to be em- 
 ployed; and the Secretary of State maintains, that no 
 means are to be considered as necessary but those with- 
 out which the grant of the power would be nugatory. 
 Nay, so far does he go in his restrictive interpretation 
 of the word, as even to make the case of necessity which 
 shall warrant the constitutional exercise of the power 
 to depend on casual and temporary circumstances; an 
 idea which alone refutes the construction. The expedi- 
 ency of exercising a particular power, at a particular 
 time, must, indeed, depend on circumstances; but the 
 constitutional right of exercising it must be uniform and 
 invariable, the same to-day as to-morrow. 
 
 It is essential to the being of the National Government, 
 that so erroneous a conception of the meaning of the 
 word necessary should be exploded. 
 
 It is certain that neither the grammatical nor popular 
 sense of the term requires that construction. Accord- 
 ing to both, necessary often means no more than needful, 
 requisite, incidental, useful, or conducive to. It is a 
 common mode of expression to say, that it is necessary 
 for a government or a person to do this or that thing, 
 when nothing more is intended or understood, than that 
 the interests of the government or person require, or 
 will be promoted by, the doing of this or that thing. 
 The imagination can be at no loss for exemplifications 
 of the use of the word in this sense. And it is the true 
 one in which it is to be understood as used in the Con- 
 
322 Story of the Constitution 
 
 stitution. The whole turn of the clause containing it 
 indicates, that it was the intent of the Convention, by 
 that clause, to give a liberal latitude to the exercise of 
 the specified powers. The expressions have peculiar com- 
 prehensiveness. They are " to make all laws necessary 
 and proper for carrying into execution the foregoing 
 powers, and all other powers vested by the Constitution 
 in the Government of the United States, or in any de- 
 partment or officer thereof." 
 
 To understand the word as the Secretary of State does, 
 would be to depart from its obvious and popular sense, 
 and to give it a restrictive operation, an idea never be- 
 fore entertained. It would be to give it the same force 
 as if the word absolutely or indispensably had been 
 prefixed to it. 
 
 Such a construction would beget endless uncertainty 
 and embarrassment. The case must be palpable and 
 extreme, in which it could be pronounced, with certainty, 
 that a measure was absolutely necessary, or one, without 
 which, the exercise of a given power would be nugatory. 
 There are few measures of any government which would 
 stand so severe a test. To insist upon it, would be to 
 make the criterion of the exercise of any implied power, 
 a case of extreme necessity; which is rather a rule to 
 justify the overleaping of the bounds of constitutional 
 authority, than to govern the ordinary exercise of it. 
 
 This restrictive interpretation of the word necessary 
 is also contrary to this sound maxim of construction; 
 namely, that the powers contained in a constitution of 
 government, especially those which concern the general ad- 
 ministration of the affairs of a country, its finances, trade, 
 defence, etc., ought to be construed liberally in advance- 
 ment of the public good. This rule does not depend on 
 the particular form of a government, or on the particular 
 demarcation of the boundaries of its powers, but on the 
 
Hamilton's Opinion on National Bank 323 
 
 nature and object of government itself. The means by 
 which national exigencies are to be provided for, na- 
 tional inconveniences obviated, national prosperity pro- 
 moted, are of such infinite variety, extent, and complexity, 
 that there must of necessity be great latitude of discretion 
 in the selection and application of those means. Hence, 
 consequently, the necessity and propriety of exercising 
 the authorities intrusted to a government on principles 
 of liberal construction. 
 
 But while on the one hand the construction of the 
 Secretary of State is deemed inadmissible, it will not 
 be contended, on the other, that the clause in question 
 gives any new or independent power. But it gives an 
 explicit sanction to the doctrine of implied powers, and 
 is equivalent to an admission of the proposition that 
 the Government, as to its specified powers and objects, 
 has plenary and sovereign authority, in some cases 
 paramount to the States; in others, co-ordinate with it. 
 For such is the plain import of the declaration, that it 
 may pass all laws necessary and proper to carry into 
 execution those powers. 
 
 It is no valid objection to the doctrine to say, that it 
 is calculated to extend the power of the Government 
 throughout the entire sphere of State legislation. The 
 same thing has been said, and may be said, with regard 
 to every exercise of power by implication or construction. 
 
 The moment the literal meaning is departed from, there 
 is a chance of error and abuse. And yet an adherence 
 to the letter of its powers would at once arrest the 
 motions of government. It is not only agreed, on all 
 hands, that the exercise of constructive powers is in- 
 dispensable, but every act which has been passed, is 
 more or less an exemplification of it. . . . 
 
 The truth is, that the difficulties on this point are 
 inherent in the nature of the Federal Constitution; they 
 
3 24 Story of the Constitution 
 
 result inevitably from a division of the legislative power. 
 The consequence of this division is, that there will be 
 cases clearly within the power of the National Govern- 
 ment; others, clearly without its powers; and a third 
 class, which will leave room for controversy and dif- 
 ference of opinion, and concerning which a reasonable 
 latitude of judgment must be allowed. 
 
 But the doctrine which is contended for is not charge- 
 able with the consequences imputed to it. It does not 
 affirm that the National Government is sovereign in all 
 respects, but that it is sovereign to a certain extent; 
 that is, to the extent of the objects of its specified powers. 
 
 It leaves, therefore, a criterion of what is constitu- 
 tional, and of what is not so. This criterion is the 
 end, to which the measure relates as a mean. If the 
 end be clearly comprehended within any of the specified 
 powers, and if the measure have an obvious relation to 
 that end, and is not forbidden by any particular provi- 
 sion of the Constitution, it may safely be deemed to come 
 within the compass of the national authority. There is 
 also this further criterion, which may materially assist 
 the decision: Does the proposed measure abridge a pre- 
 existing right of any State or of any individual? If it 
 does not, there is a strong presumption in favor of its 
 constitutionality, and slighter relations to any declared 
 object of the Constitution may be permitted to turn the 
 scale. 
 
 It is presumed to have been satisfactorily shown in 
 the course of the preceding observations: 
 
 1. That the power of the government, as to the ob- 
 jects intrusted to its management, is, in its nature, 
 sovereign. 
 
 2. That the right of erecting corporations is one in- 
 herent in, and inseparable from, the idea of sovereign 
 power. 
 
Hamilton's Opinion on National Bank 325 
 
 3. That the position, that the Government of the 
 United States can exercise no power, but such as is dele- 
 gated to it by its Constitution, does not militate against 
 this principle. 
 
 4. That the word necessary, in the general clause, 
 can have no restrictive operation derogating from the 
 force of this principle; indeed, that the degree in which 
 a measure is or is not necessary, cannot be a test of 
 constitutional right, but of expediency only. 
 
 5. That the power to erect corporations is not to be 
 considered as an independent or substantive power, but 
 as an incidental and auxiliary one, and was therefore 
 more properly left to implication, than expressly granted. 
 
 6. That the principle in question does not extend the 
 power of the government beyond the prescribed limits, 
 because it only affirms a power to incorporate for pur- 
 poses within the sphere of the specified powers. 
 
 And lastly, that the right to exercise such a power in 
 certain cases is unequivocally granted in the most posi- 
 tive and comprehensive terms. To all which it only re- 
 mains to be added, that such a power has actually been 
 exercised in two very eminent instances; namely, in the 
 erection of two governments; one northwest of the Kiver 
 Ohio, and the other southwest — the last independent of 
 any antecedent compact. And these result in a full and 
 complete demonstration, that the Secretary of State and 
 the Attorney-General are mistaken when they deny gen- 
 erally the power of the National Government to erect 
 corporations. 
 
KENTUCKY RESOLUTIONS OF 1798 
 
 The House according to the standing order of the 
 day, resolved itself into a committee of the whole on 
 the state of the commonwealth, Mr. Caldwell in the chair, 
 and after some time spent therein, the Speaker resumed 
 the chair, and Mr. Caldwell reported that the committee 
 had, according to order, had under consideration the 
 Governor's address, and had come to the following reso- 
 lutions thereupon, which he delivered in at the clerk's 
 table, where they were twice read and agreed to by the 
 House. 
 
 1. Resolved, That the several States composing the 
 United States of America, are not united on the principle 
 of unlimited submission to their General Government; 
 but that by compact, under the style and title of a 
 Constitution for the United States, and of amendments 
 thereto, they constituted a General Government for spe- 
 cial purposes, delegated to that government certain defi- 
 nite powers, reserving, each State to itself, the residuary 
 mass of right to their own self-government; and that 
 whensoever the General Government assumes undelegated 
 powers, its acts are unauthoritative, void, and of no 
 force: That to this compact each State acceded as a 
 State, and is an integral party, its co-States forming, as 
 to itself, the other party: That the government created 
 by this compact was not made the exclusive or final 
 judge of the extent of the powers delegated to itself; 
 since that would have made its discretion, and not the 
 
 326 
 
Kentucky Resolutions of 1798 327 
 
 Constitution, the measure of its pQwers; but that, as in 
 all other cases of compact among parties having no 
 common judge, each party has an equal right to judge 
 for itself, as well of infractionSj as of the mode and 
 measure of redress. 
 
 2. Resolved, That the Constitution of the United States 
 having delegated to Congress a power to punish treason, 
 counterfeiting the securities and current coin of the 
 United States, piracies and felonies committed on the 
 high seas, and offences against the laws of nations, and 
 no other crimes whatever, and it being true as a general 
 principle and one of the amendments to the Constitution 
 having also declared, " that the powers not delegated to 
 the United States by the Constitution, nor prohibited by 
 it to the States, are reserved to the States respectively, 
 or to the people " ; therefore, also, the same act of Con- 
 gress, passed on the 14th day of July, 1798, and en- 
 titled, " An act in addition to the act entitled, an act 
 for the punishment of certain crimes against the United 
 States " ; as also the act passed by them on the 27th 
 day of June, 1798, entitled, " An act to punish frauds 
 committed on the Bank of the United States" (and all 
 other their acts which assume to create, define, and pun- 
 ish crimes other than those enumerated in the Consti- 
 tution,) are altogether void, and of no force, and that 
 the power to create, define, and punish such other crimes 
 is reserved, and of right appertains, solely and ex- 
 clusively, to the respective States, each within its own 
 territory. 
 
 • •••••■ 
 
 7. Resolved, That the construction applied by the Gen- 
 eral Government (as is evinced by sundry of their pro- 
 ceedings) , to those parts of the Constitution of the United 
 States which delegates to Congress a power to lay and 
 collect taxes, duties, imposts, and excises; to pay the 
 debts, and provide for the common defence and general 
 
328 Story of the Constitution 
 
 welfare of the United States, and to make all laws which 
 shall be necessary and proper for carrying into execution 
 the powers vested by the Constitution in the Government 
 of the United States, or any department thereof, goes 
 to the destruction of all the limits prescribed to their 
 power by the Constitution : that words meant by that 
 instrument to be subsidiary only to the execution of the 
 limited powers, ought not to be so construed as them- 
 selves to give unlimited powers, nor a part so to be 
 taken, as to destroy the whole residue of the instrument ; 
 that the proceedings of the General Government, under 
 color of these articles, will be a fit and necessary sub- 
 ject for revisal and correction at a time of greater tran- 
 quillity, while those specified in the preceding resolutions 
 call for immediate redress. 
 
 8. Resolved, That the preceding resolutions be trans- 
 mitted to the Senators and Kepresentatives in Congress 
 from this commonwealth, who are hereby enjoined to 
 present the same to their respective houses, and to use 
 their best endeavors to procure, at the next session of 
 Congress, a repeal of the aforesaid unconstitutional and 
 obnoxious acts. 
 
 9. Resolved lastly, That the Governor of this common- 
 wealth be, and is hereby authorized and requested to 
 communicate the preceding resolutions to the legislatures 
 of the several States, to assure them that this common- 
 wealth considers union for specified national purposes, 
 and particularly for those specified in their late Federal 
 compact, to be friendly to the peace, happiness, and 
 prosperity of all the States; that, faithful to that com- 
 pact, according to the plain intent and meaning in which 
 it was understood and acceded to by the several parties, 
 it is sincerely anxious for its preservation; that it does 
 also believe, that to take from the States all the powers 
 of self-government, and transfer them to a general and 
 consolidated government, without regard to the special 
 
Kentucky Resolutions of 1798 329 
 
 obligations and reservations solemnly agreed to in that 
 compact, is not for the peace, happiness, or prosperity 
 of these States; and that, therefore, this commonwealth 
 is determined, as it doubts not its co-States are, tamely 
 to submit to undelegated and consequently unlimited 
 powers in no man or body of men on earth ; that if the 
 acts before specified should stand, these conclusions 
 would flow from them : that the General Government may 
 place any act they think proper on the list of crimes, 
 and punish it themselves, whether enumerated or not 
 enumerated by the Constitution, as cognizable by them; 
 that they may transfer its cognizance to the President 
 or to any other person, who may himself be the accuser, 
 counsel, judge, and jury, whose suspicions may be the 
 evidence, his order the sentence, his officer the execu- 
 tionerj and his breast the sole record of the transaction ; 
 that a very numerous and valuable description of the 
 inhabitants of these States being, by this precedent, re- 
 duced as outlaws to the absolute dominion of one man, 
 and the barrier of the Constitution thus swept away from 
 us all, no rampart now remains against the passions 
 and the powers of a majority of Congress, to protect from 
 a like exportation or other more grievous punishment the 
 minority of the same body, the legislatures, judges, gov- 
 ernors, and counsellors of the States, nor their other 
 peaceable inhabitants who may venture to reclaim the 
 constitutional rights and liberties of the States and 
 people, or who, for other causes, good or bad, may be 
 obnoxious to the views, or marked by the suspicions of 
 the President, or be thought dangerous to his or their elec- 
 tions, or other interests public or personal; that the 
 friendless alien has indeed been selected as the safest 
 subject of a first experiment; but the citizen will soon 
 follow, or rather has already followed; for, already has 
 a sedition act marked him as its prey: that these and 
 successive acts of the same character, unless arrested 
 
33° Story of the Constitution 
 
 on the threshold, may tend to drive these States into 
 revolution and blood, and will furnish new calumnies 
 against republican governments, and new pretexts for 
 those who wish it to be believed that man cannot be 
 governed but by a rod of iron; that it would be a dan- 
 gerous delusion were a confidence in the men of our 
 choice to silence our fears for the safety of our rights; 
 that confidence is everywhere the parent of despotism; 
 free government is founded in jealousy, and not in con- 
 fidence ; it is jealousy and not confidence which prescribes 
 limited constitutions to bind down those whom we are 
 obliged to trust with power; that our Constitution has 
 accordingly fixed the limits to which and no further our 
 confidence may go; and let the honest advocate of con- 
 fidence read the alien and sedition acts, and say if the 
 Constitution has not been wise in fixing limits to the 
 government it created, and whether we should be wise 
 in destroying those limits. Let him say what the gov- 
 ernment is if it be not a tyranny, which the men of our 
 choice have conferred on the President, and the President 
 of our choice has consented to and accepted, over the 
 friendly strangers, to whom the mild spirit of our coun- 
 try and its laws had pledged hospitality and protection; 
 that the men of our choice have more respected the bare 
 suspicions of the President, than the solid rights of 
 innocence, the claims of justification, the sacred force of 
 truth, and the forms and substance of law and justice. 
 In questions of power, then, let no more be heard of 
 confidence in man, but bind him down from mischief, 
 by the chains of the Constitution. That this common- 
 wealth does, therefore, call on its co-States for an ex- 
 pression of their sentiments on the acts concerning 
 aliens, and for the punishment of certain crimes herein- 
 before specified, plainly declaring whether these acts are or 
 are not authorized by the Federal compact. And it doubts 
 not that their sense will be so announced, as to prove 
 
Kentucky Resolutions of 1798 331 
 
 their attachment unaltered to limited government, 
 whether general or particular, and that the rights and 
 liberties of their co-States will be exposed to no dangers 
 by remaining embarked on a common bottom with their 
 own; that they will concur with this commonwealth 
 in considering the said acts as so palpably against the 
 Constitution, as to amount to an undisguised declara- 
 tion, that the compact is not meant to be the measure 
 of the powers of the General Government, but that it 
 will proceed in the exercise over these States of all 
 powers whatsoever; that they will view this as seizing 
 IJie rights of the States, and consolidating them in the 
 hands of the General Government with a power assumed 
 to bind the States (not merely in cases made federal), 
 but in all cases whatsoever, by laws made, not with their 
 consent, but by others against their consent; that this 
 would be to surrender the form of government we have 
 chosen, and to live under one deriving its powers from 
 its own will, and not from our authority; and that the 
 co-States, recurring to their natural right in cases not 
 made federal, will concur in declaring these acts void 
 and of no force, and will each unite with this common- 
 wealth, in requesting their repeal at the next session of 
 Congress. 
 
VIRGINIA RESOLUTIONS OP 1798 
 
 1. Resolved, That the General Assembly of Virginia 
 doth unequivocally express a firm resolution to main- 
 tain and defend the Constitution of the United States, 
 and the Constitution of this State, against every aggres- 
 sion, either foreign or domestic, and that it will support 
 the Government of the United States in all measures 
 warranted by the former. 
 
 2. That this Assembly most solemnly declares a warm 
 attachment to the union of the States, to maintain which, 
 it pledges all its powers; and that for this end it is its 
 duty to watch over and oppose every infraction of those 
 principles, which constitute the only basis of that union, 
 because a faithful observance of them can alone secure 
 its existence and the public happiness. 
 
 3. That this Assembly doth explicitly and peremp- 
 torily declare that it views the powers of the Federal 
 Government as resulting from the compact, to which the 
 States are parties, as limited by the plain sense and 
 intention of the instrument constituting that compact; 
 as no further valid than they are authorized by the 
 grants enumerated in that contract; and that in case 
 of a deliberate, palpable, and dangerous exercise of other 
 powers not granted by the said compact, the States, who 
 are the parties thereto, have the right, and are in duty 
 bound, to interpose for arresting the progress of the 
 evil, and for maintaining, within their respective limits, 
 the authorities, rights, and liberties appertaining to them. 
 
 33a 
 
Virginia Resolutions of 1798 333 
 
 4. That the General Assembly doth also express its 
 deep regret that a spirit has in sundry instances been 
 manifested by the Federal Government, to enlarge its 
 powers by forced constructions of the constitutional 
 charter which defines them; and that indications have 
 appeared of a design to expound certain general phrases 
 (which, having been copied from the very limited grant 
 of powers in the former articles of confederation, were 
 the less liable to be misconstrued), so as to destroy the 
 meaning and effect of the particular enumeration, which 
 necessarily explains and limits the general phrases, and 
 so as to consolidate the States by degrees into one sov- 
 ereignty, the obvious tendency and inevitable result of 
 which would be to transform the present republican sys- 
 tem of the United States into an absolute, or at best, a 
 mixed monarchy. 
 
 5. That the General Assembly doth particularly pro- 
 test against the palpable and alarming infractions of 
 the Constitution, in the two late cases of the " alien and 
 sedition acts," passed at the last session of Congress: 
 the first of which exercises a power nowhere delegated 
 to the Federal Government, and which, by uniting legis- 
 lative and judicial powers to those of executive, subverts 
 the general principles of free government, as well as the 
 particular organization and positive provisions of the 
 Federal Constitution; and the other of which acts ex- 
 ercises in like manner a power not delegated by the 
 Constitution, but on the contrary expressly and posi- 
 tively forbidden by one of the amendments thereto; a 
 power which more than any other ought to produce uni- 
 versal alarm, because it is levelled against the right of 
 freely examining public characters and measures, and 
 of free communication among the people thereon, which 
 has ever been justly deemed the only effectual guardian 
 of every other right. 
 
 6. That this State having by its convention, which 
 
334 Story of the Constitution 
 
 ratified the Federal Constitution, expressly declared, 
 " that among other essential rights, the liberty of con- 
 science and of the press cannot be cancelled, abridged, 
 restrained, or modified by any authority of the United 
 States," and from its extreme anxiety to guard these 
 rights from every possible attack of sophistry or am- 
 bition, having with other States recommended an amend- 
 ment for that purpose, which amendment was in due 
 time annexed to the Constitution, it would mark a re- 
 proachful inconsistency and criminal degeneracy, if an 
 indifference were now shown to the most palpable viola- 
 tion of one of the rights thus declared and secured, and 
 to the establishment of a precedent which may be fatal 
 to the other. 
 
 7. That the good people of this commonwealth having 
 ever felt, and continuing to feel the most sincere affection 
 to their brethren of the other States, the truest anxiety 
 for establishing and perpetuating the union of all, and 
 the most scrupulous fidelity to that Constitution which 
 is the pledge of mutual friendship, and the instrument 
 of mutual happiness, the General Assembly doth solemnly 
 appeal to the like dispositions of the other States, in 
 confidence that they will concur with this commonwealth 
 in declaring, as it does hereby declare, that the acts 
 aforesaid are unconstitutional, and that the necessary 
 and proper measure will be taken by each, for co- 
 operating with this State in maintaining unimpaired the 
 authorities, rights, and liberties reserved to the States 
 respectively, or to the people. 
 
 8. That the Governor be desired to transmit a copy 
 of the aforesaid resolutions to the executive authority 
 of each of the other States, with a request that the same 
 may be communicated to the Legislature thereof. And 
 that a copy be furnished to each of the Senators and 
 Representatives representing this State in the Congress 
 of the United States. 
 
ABSTRACT OF DECISION IN THE CASE OF 
 MAKBURY VS. MADISON, 1803 
 
 The question whether an act repugnant to the Consti- 
 tution can become a law of the land, is a question deeply 
 interesting to the United States; but happily not of an 
 intricacy proportionate to its interest. It seems only 
 necessary to recognize certain principles supposed to 
 have been long and well established, to decide it. . . . 
 That the people have an original right to establish for 
 their future government such principles as in their opin- 
 ion shall most conduce to their own happiness, is the 
 basis on which the whole American fabric has been 
 erected. The original supreme will organizes the gov- 
 ernment and assigns to the different departments their 
 respective powers. . . . The powers of the Legislature 
 are defined and limited; and that those limits may not 
 be mistaken or forgotten, the Constitution is written. 
 To what purpose are powers limited and to what pur- 
 pose is that limitation committed to writing, if those 
 limits may at any time be passed by those intended to 
 be restrained? . . . The Constitution is either a superior, 
 paramount law, unchangeable by ordinary means, or it 
 is on a level with ordinary legislative acts, and like any 
 other act is alterable when the Legislature shall please 
 to alter it. If the former part of the alternative be 
 true, then a legislative act contrary to the Constitution 
 is not law. If the latter part be true, then written con- 
 stitutions are absurd attempts on the part of the people 
 
 335 
 
336 Story of the Constitution 
 
 to limit a power in its own nature illimitable. ... If 
 an act of the Legislature repugnant to the Constitution 
 is void, does it, notwithstanding its invalidity, bind the 
 courts and oblige them to give it effect? Or, in other 
 words, though it be not law, does it constitute a rule as 
 operative as though it was a law? This would be to 
 overthrow in fact what was established in theory; and 
 would seem at first view an absurdity too gross to be 
 insisted upon. It shall, however, receive a more attentive 
 consideration. It is emphatically the province and duty 
 of the judicial department to say what the law is. Those 
 who apply the rule to particular cases must of neces- 
 sity expound and interpret that rule. If two laws con- 
 flict with each other, the courts must decide upon the 
 operation of each. So if a law be in opposition to the 
 Constitution; if both the law and the Constitution ap- 
 ply to a particular case, so that the court must either 
 decide that case conformably to the law, disregarding 
 the Constitution, or conformably to the Constitution, 
 disregarding the law — the court must determine which 
 of these conflicting rules governs the case. This is of 
 the very essence of judicial duty. If, then, the courts 
 are to regard the Constitution, and the Constitution is 
 superior to any ordinary act of the Legislature, the 
 Constitution, and not such ordinary act, must govern the 
 case to which they both apply. Those, then, who con- 
 trovert the principle that the Constitution is to be con- 
 sidered in court as a paramount law, are reduced to 
 the necessity of maintaining that courts must close their 
 eyes on the Constitution and see only the law. 
 
AMENDMENTS TO THE CONSTITUTION PRO- 
 POSED BY THE HAETFOED CONVENTION, 
 
 1814 
 
 Therefore Resolved — That it be and hereby is recom- 
 mended to the Legislatures of the several States repre- 
 sented in this Convention, to adopt all such measures as 
 may be necessary effectually to protect the citizens of said 
 States from the operation and effects of all acts which 
 have been or may be passed by the Congress of the 
 United States, which shall contain provisions, subject- 
 ing the militia or other citizens to forcible drafts, con- 
 scriptions, or impressments, not authorized by the 
 Constitution of the United States. 
 
 Resolved — That it be and hereby is recommended to 
 the said Legislatures, to authorize an immediate and 
 earnest application to be made to the Government of 
 the United States, requesting their consent to some ar- 
 rangement, whereby the said States may, separately or 
 in concert, be empowered to assume upon themselves 
 the defence of their territory against the enemy; and 
 a reasonable portion of the taxes, collected within said 
 States, may be paid into the respective treasuries thereof, 
 and appropriated to the payment of the balance due 
 said States, and to the future defence of the same. The 
 amount so paid into the said treasuries to be credited, 
 and the disbursements made as aforesaid to be charged 
 to the United States. 
 
 Resolved — That it be, and it hereby is, recommended 
 32 337 
 
33^ Story of the Constitution 
 
 to the Legislatures of the aforesaid States, to pass laws 
 (where it has not already been done) authorizing the 
 Governors or Commanders-in-Chief of their militia to 
 make detachments from the sanie, or to form voluntary 
 corps, as shall be most convenient and conformable to 
 their Constitutions, and to cause the same to be well 
 armed, equipped, and disciplined, and held in readiness 
 for service; and upon the request of the Governor of 
 either of the other States, to employ the whole of such 
 detachment or corps, as well as the regular forces of the 
 State, or such part thereof as may be required and can 
 be spared consistently with the safety of the State, in 
 assisting the State making such request, to repel any 
 invasion thereof which shall be made or attempted by 
 the public enemy. 
 
 Resolved — That the following amendments of the Con- 
 stitution of the United States be recommended to the 
 States as aforesaid, to be proposed by them for adoption 
 by the State Legislatures, and, in such cases as may be 
 deemed expedient, by a Convention chosen by the people 
 of each State. 
 
 And it is further recommended, that the said States 
 shall persevere in their efforts to obtain such amend- 
 ments, until the same shall be effected. 
 
 First — Representatives and direct taxes shall be ap- 
 portioned among the several States which may be in- 
 cluded within this Union, according to their respective 
 numbers of free persons, including those bound to serve 
 for a term of years, and excluding Indians not taxed, 
 and all other persons. 
 
 Second — ^No new State shall be admitted into the Union 
 by Congress in virtue of the power granted by the 
 Constitution, without the concurrence of two thirds of 
 both Houses. 
 
 Third — Congress shall not have power to lay any em- 
 bargo on the ships or vessels of the citizens of the 
 
Hartford Convention 339 
 
 United States, in the ports or harbors thereof, for more 
 than sixty days. 
 
 Fourth — Congress shall not have power, without the 
 concurrence of two thirds of both Houses, to interdict 
 the commercial intercourse between the United States 
 and any foreign nation or the dependencies thereof. 
 
 Fifth — Congress shall not make or declare war, or 
 authorize acts of hostility against any foreign nation, 
 without the concurrence of two thirds of both Houses, 
 except such acts of hostility be in defence of the terri- 
 tories of the United States when actually invaded. 
 
 Sixth — No person who shall hereafter be naturalized, 
 shall be eligible as a member of the Senate or House of 
 Representatives of the United States, nor capable of 
 holding any civil oflSce under the authority of the United 
 States. 
 
 Seventh — The same person shall not be elected Presi- 
 dent of the United States a second time; nor shall the 
 President be elected from the same State two terms in 
 succession. 
 
 Resolved — That if the application of these States to 
 the Government of the United States, recommended in 
 a foregoing Resolution, should be unsuccessful, and peace 
 should not be concluded, and the defence of these States 
 should be neglected, as it has been since the commence- 
 ment of the war, it will in the opinion of this Conven- 
 tion be expedient for the Legislatures of the several 
 States to appoint Delegates to another Convention, to 
 meet at Boston, in the State of Massachusetts, on the 
 third Thursday of June next, with such powers and in- 
 structions as the exigency of a crisis so momentous may 
 require. 
 
SOUTH CAROLINA ORDINANCE OF NULLIFICA- 
 TION, 1832 
 
 An ordinance to nullify certain acts of the Congress of 
 the United States, purporting to be laws laying 
 duties and imposts on the importation of foreign 
 commodities. 
 Whereas the Congress of the United States by various 
 acts, purporting to be acts laying duties and imposts 
 on foreign imports, but in reality intended for the pro- 
 tection of domestic manufactures, and the giving of 
 bounties to classes and individuals engaged in particular 
 employments, at the expense and to the injury and op- 
 pression of other classes and individuals, and by wholly 
 exempting from taxation certain foreign commodities, 
 such as are not produced or manufactured in the United 
 States, to afford a pretext for imposing higher and ex- 
 cessive duties on articles similar to those intended to 
 be protected, hath exceeded its just powers under the 
 Constitution, which confers on it no authority to afford 
 such protection, and hath violated the true meaning and 
 intent of the Constitution, which provides for equality 
 in imposing the burdens of taxation upon the several 
 States and portions of the confederacy: And whereas 
 the said Congress, exceeding its just power to impose 
 taxes and collect revenue for the purpose of effecting 
 and accomplishing the specific objects and purposes 
 which the Constitution of the United States authorizes 
 it to effect and accomplish, hath raised and collected 
 
 340 
 
S. C. Ordinance of Nullification 341 
 
 unnecessary revenue for objects unauthorized by the 
 Constitution. 
 
 We, therefore, the people of the State of South Carolina, 
 in convention assembled, do declare and ordain and it 
 is hereby declared and ordained, that the several acts 
 and parts of acts of the Congress of the United States, 
 purporting to be laws for the imposing of duties and 
 imposts on the importation of foreign commodities, and 
 now having actual operation and effect within the 
 United States, and more especially, an act entitled " An 
 act in alteration of the several acts imposing duties on 
 imports," approved on the nineteenth day of May, one 
 thousand eight hundred and twenty-eight, and also an 
 act entitled " An act to alter and amend the several 
 acts imposing duties on imports," approved on the four- 
 teenth day of July, one thousand eight hundred and 
 thirty-two, are unauthorized by the Constitution of the 
 United States, and violate the true meaning and intent 
 thereof and are null, void, and no law, nor binding upon 
 this State, its officers or citizens; and all promises, con- 
 tracts, and obligations, made or entered into, or to be 
 made or entered into, with purpose to secure the duties 
 imposed by said acts, and all judicial proceedings which 
 shall be hereafter had in affirmance thereof, are and 
 shall be held utterly null and void. 
 
 And it is further ordained, that it shall not be lawful 
 for any of the constituted authorities, whether of this 
 State or of the United States, to enforce the payment 
 of duties imposed by the said acts within the limits of 
 this State; but it shall be the duty of the Legislature 
 to adopt such measures and pass such acts as may be 
 necessary to give full effect to this ordinance, and to 
 prevent the enforcement and arrest the operation of the 
 said acts and parts of acts of the Congress of the United 
 States within the limits of this State, from and after 
 the first day of February next, and the duties of all 
 
342 Story of the Constitution 
 
 other constituted authorities, and of all persons residing 
 or being within the limits of this State, and they are 
 hereby required and enjoined to obey and give effect to 
 this ordinance, and such acts and measures of the Legis- 
 lature as may be passed or adopted in obedience thereto. 
 
 And it is further ordained, that in no case of law or 
 equity, decided in the courts of this State, wherein shall 
 be drawn in question the authority of this ordinance, or 
 the validity of such act or acts of the Legislature as 
 may be passed for the purpose of giving effect thereto, 
 or the validity of the aforesaid acts of Congress, im- 
 posing duties, shall any appeal be taken or allowed to 
 the Supreme Court of the United States, nor shall any 
 copy of the record be permitted or allowed for that 
 purpose; and if any such appeal shall be attempted to 
 be taken, the courts of this State shall proceed to exe- 
 cute and enforce their judgments according to the laws 
 and usages of the State, without reference to such at- 
 tempted appeal, and the person or persons attempting 
 to take such appeal may be dealt with as for a contempt 
 of the court. 
 
 And it is further ordained, that all persons now hold- 
 ing any office of honor, profit, or trust, civil or mili- 
 tary, under this State (members of the Legislature 
 excepted), shall, within such timCj and in such manner 
 as the Legislature shall prescribe, take an oath well 
 and truly to obey, execute, and enforce this ordinance, 
 and such act or acts of the Legislature as may be passed 
 in pursuance thereof, according to the true intent and 
 meaning of the same; and on the neglect or omission 
 of any such person or persons so to do, his or their 
 office or offices shall be forthwith vacated, and shall be 
 filled up as if such person or persons were dead or had 
 resigned; and no person hereafter elected to any office 
 of honor, profit, or trust, civil or military (members of 
 the Legislature excepted), shall, until the Legislature 
 
S. C. Ordinance of Nullification 343 
 
 shall otherwise provide and direct, enter on the execution 
 of his office, or be in any respect competent to dis- 
 charge the duties thereof until he shall, in like manner, 
 have taken a similar oath; and no juror shall be im- 
 panelled in any of the courts of this State, in any cause 
 in which shall be in question this ordinance, or any act 
 of the Legislature passed in pursuance thereof, unless 
 he shall first, in addition to the usual oath, have taken 
 an oath that he will well and truly obey, execute, and 
 enforce this ordinance, and such act or acts of the Legis- 
 lature as may be passed to carry the same into operation 
 and effect, according to the true intent and meaning 
 thereof. 
 
 And we, the people of South Carolina, to the end that 
 it may be fully understood by the Government of the 
 United States, and the people of the co-States, that we 
 are determined to maintain this our ordinance and dec- 
 laration, at every hazard, do further declare that we will 
 not submit to the application of force on the part of 
 the Federal Government, to reduce this State to obedi- 
 ence ; but that we will consider the passage, by Congress, 
 of any act authorizing the employment of a military or 
 naval force against the State of South Carolina, her 
 constitutional authorities or citizens ; or any act abolish- 
 ing or closing the ports of this State, or any of them, or 
 otherwise obstructing the free ingress and egress of 
 vessels to and from the said ports, or any other act on 
 the part of the Federal Government, to coerce the State, 
 shut up her ports, destroy or harass her commerce or 
 to enforce the acts hereby declared to be null and void, 
 otherwise than through the civil tribunals of the coun- 
 try, as inconsistent with the longer continuance of South 
 Carolina in the Union ; and that the people of this State 
 will henceforth hold themselves absolved from all further 
 obligation to maintain or preserve their political con- 
 nection with the people of the other States; and will 
 
344 Story of the Constitution 
 
 forthwith proceed to organize a separate government, 
 and do all other acts and things which sovereign and 
 independent States may of right do. 
 
 Done in convention at Columbia, the twenty-fourth 
 day of November, in the year of our Lord one thousand 
 eight hundred and thirty-two, and in the fifty-seventh 
 year of the Declaration of the Independence of the United 
 States of America. 
 
PRESIDENT JACKSON'S PROCLAMATION, 1832 
 
 Whereas a convention, assembled in tlie State of South 
 Carolina, have passed an ordinance, by '^hich they de- 
 clare " that the several acts and parts of acts of the Con- 
 gress of the United States purporting to be laws for the 
 imposing of duties and imposts on the importation of 
 foreign commodities, and now having actual operation 
 and effect within the United States, and more especially 
 ' two acts for the same purposes, passed on the 29th of 
 May, 1828, and on the 14th of July, 1832,' are un- 
 authorized by the Constitution of the United States, and 
 violate the true meaning and intent thereof, and are null 
 and void, and no law," nor binding on the citizens of 
 that State or its officers; and by the said ordinance it 
 is further declared to be unlawful for any of the con- 
 stituted authorities of the State, or of the United States, 
 to enforce the payment of the duties imposed by the 
 said acts within the same State, and that it is the duty 
 of the Legislature to pass such laws as may be neces- 
 sary to give full effect to the said ordinance : 
 
 And whereas, by the said ordinance it is further or- 
 dained, that, in no case of law or equity, decided in 
 the courts of said State, wherein shall be drawn in 
 question the validity of the said ordinance, or of the 
 acts of the Legislature that may be passed to give it 
 effect, or of the said laws of the United States, no 
 appeal shall be allowed to the Supreme Court of the 
 United States, nor shall any copy of the record be per- 
 
 345 
 
346 Story of the Constitution 
 
 mitted or allowed for that purpose; and that any person 
 attempting to take such appeal, shall be punished as for 
 a contempt of court: 
 
 And, finally, the said ordinance declares that the 
 people of South Carolina will maintain the said ordi- 
 nance at every hazard; and that they will consider the 
 passage of any act by Congress abolishing or closing 
 the ports of the said State, or otherwise obstructing the 
 free ingress or egress of vessels to and from the said 
 ports, or any other act of the Federal Government to 
 coerce the State, shut up her ports, destroy or harass 
 her commerce, or to enforce the said acts otherwise than 
 through the civil tribunals of the country, as incon- 
 sistent with the longer continuance of South Carolina 
 in the Union; and that the people of the said State 
 will thenceforth hold themselves absolved from all 
 further obligation to maintain or preserve their political 
 connection with the people of the other States, and will 
 forthwith proceed to organize a separate government, 
 and do all other acts and things which sovereign and 
 independent States may of right do: 
 
 And whereas the said ordinance prescribes to the 
 people of South Carolina a course of conduct in direct 
 violation of their duty as citizens of the United States, 
 contrary to the laws of their country, subversive of its 
 Constitution, and having for its object the destruction 
 of the Union — that Union, which, coeval with our po- 
 litical existence, led our fathers, without any other ties 
 to unite them than those of patriotism and a common 
 cause, through the sanguinary struggle to a glorious in- 
 dependence — that sacred Union, hitherto inviolate, which, 
 perfected by our happy Constitution, has brought us, by 
 the favor of Heaven, to a state of prosperity at home, 
 and high consideration abroad, rarely, if ever, equalled in 
 the history of nations; to preserve this bond of our po- 
 litical existence from destruction, to maintain inviolate 
 
President Jackson's Proclamation 347 
 
 this state of national honor and prosperity, and to 
 justify the confidence my fellow-citizens have reposed in 
 me, I, Andrew Jackson, President of the United States, 
 have thought proper to issue this my Proclamation, 
 stating my views of the Constitution and laws applicable 
 to the measures adopted by the Convention of South 
 Carolina, and to the reasons they have put forth to 
 sustain them, declaring the course which duty will re- 
 quire me to pursue, and, appealing to the understanding 
 and patriotism of the people, warn them of the con- 
 sequences that must inevitably result from an observance 
 of the dictates of the Convention. 
 
 Strict duty would require of me nothing more than 
 the exercise of those powers with which I am now, or 
 may hereafter be, invested, for preserving the Union, 
 and for the execution of the laws. But the imposing 
 aspect which opposition has assumed in tills case, t)y 
 clothing itself with State authority, and the deep in- 
 terest which the people of the United States must all 
 feel in preventing a resort to stronger measures, while 
 there is a hope that anything will be yielded to reason- 
 ing and remonstrances, perhaps demand, and will cer- 
 tainly justify, a full exposition to South Carolina and 
 the nation of the views I entertain of this important 
 question, as well as a distinct enunciation of the course 
 which my sense of duty will require me to pursue. 
 
 The ordinance is founded, not on the indefeasible right 
 of resisting acts which are plainly unconstitutional, and 
 too oppressive to be endured, but on the strange position 
 that any one State may not only declare an act of 
 Congress void, but prohibit its execution — that they may 
 do this consistently with the Constitution — that the true 
 construction of that instrument permits a State to re- 
 tain its place in the Union, and yet be bound by no 
 other of its laws than those it may choose to consider 
 as constitutional. It is true they add, that to justify 
 
348 Story of the Constitution 
 
 this abrogation of a law, it must be palpably contrary to 
 the Constitution ; but it is evident, that to give the right 
 of resisting laws of that description, coupled with the 
 uncontrolled right to decide what laws deserve that char- 
 acter, is to give the power of resisting all laws. For, 
 as by the theory, there is no appeal, the reasons alleged 
 by the State, good or bad, must prevail. If it should 
 be said that public opinion is a sufficient check against 
 the abuse of this power, it may be asked why it is not 
 deemed a sufficient guard against the passage of an un- 
 constitutional act by Congress. There is, however, a 
 restraint in this last case, which makes the assumed 
 power of a State more indefensible, and which does not 
 exist in the other. There are two appeals from an un- 
 constitutional act passed by Congress — one to the judi- 
 ciary, the other to the people and the States. There is 
 no appeal from the State decision in theory; and the 
 practical illustration shows that the courts are closed 
 against an application to review it, both judges and 
 jurors being sworn to decide in its favor. But reason- 
 ing on this subject is superfluous, when our social com- 
 pact in express terms declares, that the laws of the 
 United States, its Constitution, and treaties made under 
 it, are the supreme law of the land; and for greater 
 caution adds, " that the judges in every State shall be 
 bound thereby, anything in the Constitution or laws of 
 any State to the contrary notwithstanding." And it 
 may be asserted, without fear of refutation, that no 
 federative government could exist without a similar pro- 
 vision. Look, for a moment, to the consequence. If 
 South Carolina considers the revenue laws unconstitu- 
 tional, and has a right to prevent their execution in the 
 port of Charleston, there would be a clear constitutional 
 objection to their collection in every other port, and 
 no revenue could be collected anywhere; for all imposts 
 must be equal. It is no answer to repeat that an un- 
 
President Jackson's Proclamation 349 
 
 constitutional law is no law, so long as the question of 
 its legality is to be decided by the State itself; for every 
 law operating injuriously upon any local interest will 
 be perhaps thought, and certainly represented, as un- 
 constitutional, and, as has been shown, there is no appeal. 
 If this doctrine had been established at an earlier 
 day, the Union would have been dissolved in its in- 
 fancy. The excise law in Pennsylvania, the embargo 
 and non-intercourse law in the Eastern States, the car- 
 riage tax in Virginia, were all deemed unconstitutional, 
 and were more unequal in their operation than any of 
 the laws now complained of; but, fortunately, none of 
 those States discovered that they had the right now 
 claimed by South Carolina. The war into which we were 
 forced, to support the dignity of the nation and the 
 rights of our citizens, might have ended in defeat and 
 disgrace, instead of victory and honor, if the States, 
 who supposed it a ruinous and unconstitutional measure, 
 had thought they possessed the right of nullifying the 
 act by which it was declared, and denying supplies for 
 its prosecution. Hardly and unequally as those meas- 
 ures bore upon several members of the Union, to the 
 legislatures of none did this eflScient and peaceable 
 remedy, as it is called, suggest itself. The discovery of 
 this important feature in our Constitution- was reserved 
 to the present day. To the statesmen of South Carolina 
 belongs the invention, and upon the citizens of that State 
 will, unfortunately, fall the evils of reducing it to 
 practice. 
 
 I consider, then, the power to annul a law of the United 
 States, assumed by one State, incompatible with the ex- 
 istence of the Union, contradicted expressly ty the letter 
 of the Constitution, unauthorised hy its spirit, incon- 
 sistent with every principle on which it was founded, and 
 destructive of the great object for which it was formed. 
 
35° Story of the Constitution 
 
 This right to secede is deduced from the nature of 
 the Constitution, which they say is a compact between 
 sovereign States, who have preserved their whole sov- 
 ereignty, and therefore are subject to no superior; that 
 because they made the compact, they can break it when 
 in their opinion it has been departed from by the other 
 States. Fallacious as this course of reasoning is, it en- 
 lists State pride, and finds advocates in the honest pre- 
 judices of those who have not studied the nature of our 
 government sufficiently to see the radical error on which 
 it rests. 
 
 The people of the United States formed the Constitu- 
 tion, acting through the State legislatures, in making 
 the compact, to meet and discuss its provisions, and act- 
 ing in separate conventions when they ratified those 
 provisions; but the terms used in its construction show 
 it to be a government in which the people of all the 
 States collectively are represented. We are One Peo- 
 ple in the choice of the President and Vice-President. 
 Here the States have no other agency than to direct the 
 mode in which the vote shall be given. The candidates 
 having the majority of all the votes are chosen. The 
 electors of a majority of States may have given their 
 votes for one "candidate, and yet another may be chosen. 
 The people, then, and not the States, are represented 
 in the executive branch. 
 
 The Constitution of the United States, then, forms a 
 government, not a league, and whether it be formed by 
 compact between the States, or in any other manner, its 
 character is the same. It is a government in which all 
 the people are represented, which operates directly on 
 the people individually, not upon the States; they re- 
 tained all the power they did not grant. But each State, 
 having expressly parted with so many powers as to con- 
 
President Jackson's Proclamation 351 
 
 stitute jointly with the other States a single nation, 
 cannot from that period possess any right to secede, 
 because such secession does not break a league, but de- 
 stroys the unity of a nation, and any injury to that 
 unity is not only a breach which would result from the 
 contravention of a compact, but it is an offence against 
 the whole Union. To say that any State may at pleas- 
 ure secede from the Union is to say that the United 
 States are not a nation; because it would be a solecism 
 to contend that any part of a nation might dissolve its 
 connection with the other parts, to their injury or ruin, 
 without committing any ofEence. Secession, like any 
 other revolutionary act, may be morally justified by the 
 extremity of oppression; but to call it a constitutional 
 right is confounding the meaning of terms, and can only 
 be done through gross error, or to deceive those who are 
 willing to assert a right, but would pause before they 
 made a revolution, or incur the penalties consequent 
 upon a failure. 
 
 Because the Union was formed by compact, it is said 
 the parties to that compact may, when they feel them- 
 selves aggrieved, depart from it; but it is precisely be- 
 cause it is a compact that they cannot. A compact is 
 an agreement or binding obligation. It may by its terms 
 have a sanction or penalty for its breach, or it may not. 
 If it contains no sanction, it may be broken with no 
 other consequence than moral guilt; if it have a sanc- 
 tion, then the breach incurs the designated or implied 
 penalty. A league between independent nations, gen- 
 erally, has no sanction other .than a moral one ; or if it 
 should contain a penalty, as there is no common su- 
 perior, it cannot be enforced. A government, on the 
 contrary, always has a sanction, expressed or implied; 
 and, in our case, it is both necessarily implied and ex- 
 pressly given. An attempt by force of arms to destroy 
 a government is an ofEence, by whatever means the 
 
3 52 Story of the Constitution 
 
 constitutional compact may have been formed; and such 
 government has the right, by the law of self-defence, to 
 pass acts for punishing the offender, unless that right 
 is modified, restrained, or resumed by the constitutional 
 act. In our system, although it is modified in the case 
 of treason, yet authority is expressly given to pass all 
 laws necessary to carry its powers into effect, and under 
 this grant provision has been made for punishing acts 
 which obstruct the due administration of the laws. 
 
 It would seem superfluous to add anything to show 
 the nature of that union which connects us; but as 
 erroneous opinions on this subject are the foundation 
 of doctrines the most destructive to our peace, I must 
 give some further development to my views on this sub- 
 ject. No one, fellow-citizens, has a higher reverence for 
 the reserved rights of the States than the magistrate who 
 now addresses you. No one would make greater per- 
 sonal sacrifices, or official exertions, to defend them from 
 violation; but equal care must be taken to prevent, on 
 their part, an improper interference with, or resumption 
 of, the rights they have vested in the nation. The line 
 has been so distinctly drawn as to avoid doubts in some 
 cases of the exercise of power. Men of the best inten- 
 tions and soundest views may differ in their construction 
 of some parts of the Constitution ; but there are others on 
 which dispassionate reflection can leave no doubt. Of 
 this nature appears to be the assumed right of secession. 
 It rests, as we have seen, on the alleged undivided sov- 
 ereignty of the States, and on their having formed in 
 this sovereign capacity a ^compact which is called the 
 Constitution, from which, because they made it, they 
 have the right to secede. Both of these positions are 
 erroneous, and some of the arguments to prove them so 
 have been anticipated. 
 
 The States severally have not retained their entire 
 sovereignty. It has been shown that in becoming parts 
 
President Jackson's Proclamation 353 
 
 of a nation, not members of a league, they surrendered 
 many of their essential parts of sovereignty. The right 
 to make treaties, declare war, levy taxes, exercise ex- 
 clusive judicial and legislative powers, were all functions 
 of sovereign power. The States, then, for all these im- 
 portant purposes, were no longer sovereign. The alle- 
 giance of their citizens was transferred in the first 
 instance to the Government of the United States; they 
 became American citizens, and owed obedience to the 
 Constitution of the United States, and to laws made in 
 conformity with the powers vested in Congress. This 
 last position has not been, and cannot be, denied. How, 
 then, can that State be said to be sovereign and inde- 
 pendent whose citizens owe obedience to laws not made 
 by it, and whose magistrates are sworn to disregard 
 those laws, when they come in conflict with those passed 
 by another? What shows conclusively that the States 
 cannot be said to have reserved an undivided sovereignty, 
 is that they expressly ceded the right to punish treason 
 — not treason against their separate power, but treason 
 against the United States. Treason is an offence against 
 sovereignty, and sovereignty must reside with the power 
 to punish it. But the reserved rights of the States are 
 not less sacred because they have for their common in- 
 terest made the general government the depository of 
 these powers. The unity of our political character (as 
 has been shown for another purpose) commenced with 
 its very existence. Under the royal government we had 
 no separate character; our opposition to its oppression 
 began as United Colonies. We were the United 
 States under the Confederation, and the name was, 
 perpetuated and the Union rendered more perfect by 
 the Federal Constitution. In none of these stages did 
 we consider ourselves in any other light than as form- 
 ing one nation. Treaties and alliances were made in 
 the name of all. Troops were raised for the joint de- 
 
354 Story of the Constitution 
 
 fence. How, then, with all these proofs, that under all 
 changes of our position we had, for designated purposes 
 and with defined powers, created national governments 
 — how is it that the most perfect of these several modes 
 of union should now be considered as a mere league that 
 may be dissolved at pleasure? It is from an abuse of 
 terms. Compact is used as synonymous with league, 
 although the true term is not employed, because it would 
 at once show the fallacy of the reasoning. It would not 
 do to say that our Constitution was only a league, but 
 it is labored to prove it a compact (which, in one sense, 
 it is), and then to argue that as a league is a compact, 
 every compact between nations must, of course, be a 
 league, and that from such an engagement every sov- 
 ereign power has a right to recede. But it has been 
 shown that in this sense the States are not sovereign, 
 and that even if they were, and the national Constitu- 
 tion had been formed by compact, there would be no 
 right in any one State to exonerate itself from the 
 obligation. 
 
 So obvious are the reasons which forbid this seces- 
 sion, that it is necessary only to allude to them. The 
 Union was formed for the benefit of all. It was pro- 
 duced by mutual sacrifice of interest and opinions. Can 
 those sacrifices be recalled? Can the States, who mag- 
 nanimously surrendered their title to the territories of 
 the West, recall the grant? Will the inhabitants of the 
 inland States agree to pay the duties that may be im- 
 posed without their assent by those on the Atlantic or 
 the Gulf, for their own benefit? Shall there be a free 
 port in one State, and enormous duties in another? No 
 one believes that any right exists in a single State to 
 involve all the others in these and countless other evils, 
 contrary to engagements solemnly made. Every one must 
 see that the other States, in self-defence, must oppose 
 it at all hazards. 
 
President Jackson's Proclamation 355 
 
 Fellow-citizens of my native State! let me not only 
 admonish you, as the first magistrate of our common 
 country, not to incur the penalty of its laws, but use 
 the influence that a father would orer his children whom 
 he saw rushing to a certain ruin. In that paternal lan- 
 guage, with that paternal feeling, let me tell you, my 
 countrymen, that you are deluded by men who are either 
 deceived themselves or wish to deceive you. Mark under 
 what pretences you have been led on to the brink of 
 insurrection and treason on which you stand! First, a 
 diminution of the value of our staple commodity, low- 
 ered by over-production in other quarters, and the con- 
 sequent diminution in value of your lands were the 
 sole effect of the tariff laws. The effect of those laws 
 was confessedly injurious, but the evil was greatly ex- 
 aggerated by the unfounded theory you were taught to 
 believe, that its burdens were in proportion to your 
 exports, not to your consumption of imported articles. 
 Your pride was aroused by the assertion that a sub- 
 mission to these laws was a state of vassalage, and that 
 resistance to them was equal, in patriotic merit, to the 
 opposition our fathers offered to the oppressive laws of 
 Great Britain. You were told that this opposition might 
 be peaceably — might be constitutionally made — that you 
 might enjoy all the advantages of the Union and bear 
 none of its burdens. Eloquent appeals to your passions, 
 to your State pride, to your native courage, to your 
 sense of real injury, were used to prepare you for the 
 period when the mask which concealed the hideous 
 features of Disunion should be taken off. It fell, 
 and you were made to look with complacency on ob- 
 jects which not long since you would have regarded 
 with horror. Look back to the arts which have brought 
 you to this state — look forward to the consequences to 
 which it must inevitably lead! Look back to what was 
 
356 Story of the Constitution 
 
 first told you as an inducement to enter into this danger- 
 ous course. The great political truth was repeated to 
 you that you had the revolutionary right of resisting 
 all laws that were palpably unconstitutional and in- 
 tolerably oppressive — it was added that the right to nullify 
 a law rested on the same principle, but that it was a 
 peaceable remedy! This character which was given to 
 it made you receive with too much confidence the as- 
 sertions that were made of the unconstitutionality of 
 the law and its oppressive effects. Mark, my fellow- 
 citizens, that by the admission of your leaders the un- 
 constitutionality must be palpable, or it will not justify 
 either resistance or nullification! What is the meaning 
 of the word palpable in the sense in which it is here used? 
 that which is apparent to every one, that which no man 
 of ordinary intellect will fail to perceive. Is the un- 
 constitutionality of these laws of that description? Let 
 those among your leaders who once approved and ad- 
 vocated the principles of protective duties, answer the 
 question; and let them choose whether they will be con- 
 sidered as incapable, then, of perceiving that which must 
 have been apparent to every man of common understand- 
 ing, or as imposing upon your confidence and endeavoring 
 to mislead you now. In either case, they are unsafe 
 guides in the perilous path they urge you to tread. 
 Ponder well on this circumstance, and you will know 
 how to appreciate the exaggerated language they address 
 to you. They are not champions of liberty emulating 
 the fame of our Revolutionary fathers, nor are you an 
 oppressed people, contending, as they repeat to you, 
 against worse than colonial vassalage. You are free 
 members of a flourishing and happy Union. There is no 
 settled design to oppress you. You have, indeed, felt 
 the unequal operation of laws which may have been un- 
 wisely, not unconstitutionally passed ; but that inequality 
 must necessarily be removed. At the very moment when 
 
President Jackson's Proclamation 357 
 
 you were madly urged on to the unfortunate course you 
 have begun, a change in public opinion has commenced. 
 The nearly approaching payment of the public debt, and 
 the consequent necessity of a diminution of duties, had 
 already caused a considerable reduction, and that, too, 
 on some articles of general consumption in your State. 
 The importance of- this change was underrated, and you 
 were authoritatively told that no further alleviation of 
 your burdens was to be expected, at the very time when 
 the condition of the country imperiously demanded such 
 a modification of the duties as should reduce them to a 
 just and equitable scale. But, as apprehensive of the 
 eflfect of this change in allaying your discontents, you 
 were precipitated into the fearful state in which you 
 now find yourselves. 
 
 I have urged you to look back to the means that were 
 used to hurry you on to the position you have now as- 
 sumed, and forward to the consequences they will pro- 
 duce. Something more is necessary. Contemplate the 
 condition of that country of which you still form an 
 important part; consider its government uniting in one 
 bond of common interest and general protection so 
 many different States — giving to all their inhabitants the 
 proud title of American Citizen — protecting their com- 
 merce — securing their literature and arts — facilitating 
 their intercommunication — defending their frontiers — 
 and making their name respected in the remotest parts 
 of the earth! Consider the extent of its territory, its 
 increasing and happy population, its advance in arts, 
 which render life agreeable, and the sciences which ele- 
 vate the mind! See education spreading the lights of 
 religion, morality, and general information into every 
 cottage in this wide extent of our Territories and States ! 
 Behold it as the asylum where the wretched and oppressed 
 find a refuge and support! Look on this picture of hap- 
 piness and honor, and say, AVe, too, Aee Citizens 
 
358 Story of the Constitution 
 
 OF America — Carolina is one of these proud States 
 her arms have defended — her best blood has cemented 
 this happy Union! And then add, if you can, without 
 horror and remorse, this happy Union we will dissolve 
 — this picture of peace and prosperity we will deface — 
 this free intercourse we will interrupt — these fertile fields 
 we will deluge with blood — the protection of that glori- 
 ous flag we renounce — the very name of Americans we 
 discard. And for what, mistaken men! For what do 
 you throw away these inestimable blessings — for what 
 would you exchange your share in the advantages and 
 honor of the Union? For the dream of a separate inde- 
 pendence — a dream interrupted by bloody conflicts with 
 your neighbors, and a vile dependence on a foreign power. 
 If your leaders could succeed in establishing a separa- 
 tion, what would be your situation? Are you united at 
 home — are you free from the apprehension of civil 
 discord, with all its fearful consequences? Do our neigh- 
 boring republics, every day suffering some new revolu- 
 tion or contending with some new insurrection — do they 
 excite your envy? But the dictates of a high duty oblige 
 me solemnly to announce that you cannot succeed. The 
 laws of the United States must be executed. I have no 
 discretionary power on the subject — my duty is em- 
 phatically pronounced in the Constitution. Those who 
 told you that you might peaceably prevent their ex- 
 ecution, deceived you — they could not have been deceived 
 themselves. They know that a forcible opposition could 
 alone prevent the execution of the laws, and they know 
 that such opposition must be repelled. Their object is 
 disunion; but be not deceived by names; disunion, by 
 armed force, is Treason. Are you really ready to 
 incur its guilt? If you are, on the head of the insti- 
 gators of the act be the dreadful consequences — on their 
 heads be the dishonor, but on yours may fall the punish- 
 ment — on your unhappy State will inevitably fall all 
 
President Jackson's Proclamation 359 
 
 the evils of the conflict you force upon the government 
 of your country. It cannot accede to the mad project 
 of disunion, of which you would be the first victims — 
 its first magistrate cannot, if he would, avoid the per- 
 formance of his duty — ^the consequence must be fearful 
 for you, distressing to your fellow-citizens here, and to 
 the friends of good government throughout the world. 
 Its enemies have beheld our prosperity with a vexation 
 they could not conceal — it was a standing refutation of 
 their slavish doctrines, and they will point to our dis- 
 cord with the triumph of malignant joy. It is yet 
 in your power to disappoint them. There is yet time to 
 show that the descendants- of the Pinckneys, the Sump- 
 ters, the Rutledges, and of the thousand other names 
 which adorn the pages of your Revolutionary history, 
 will not abandon that Union to support which so many 
 of them fought and bled and died. I adjure you, as you 
 honor their memory — as you love the cause of freedom, 
 to which they dedicated their lives — as you prize the 
 peace of your country, the lives of its best citizens, and 
 your own fair fame, to retrace your steps. Snatch from 
 the archives of your State the disorganizing edict of its 
 convention — bid its members to reassemble and promul- 
 gate the decided expressions of your will to remain in 
 the path which alone can conduct you to safety, pros- 
 perity, and honor — tell them that compared to disunion, 
 all other evils are light, because that brings with it an 
 accumulation of all — declare that you will never take 
 the field unless the star-spangled banner of your country 
 shall float over you — that you will not be stigmatized 
 when dead, and dishonored and scorned while you live, 
 as the authors of the flrst attack on the Constitution 
 of your country ! — its destroyers you cannot be. You may 
 disturb its peace — you may interrupt the course of its 
 prosperity — ^you may cloud its reputation for stability — 
 but its tranquillity will be restored, its prosperity will 
 
360 Story of the Constitution 
 
 return, and the stain upon its national character will 
 be transferred and remain an eternal blot on the memory 
 of those who caused the disorder. 
 
 Fellow-citizens of the United States! the threat of 
 unhallowed disunion — the names of those, once respected, 
 by whom it is uttered — the array of military force to 
 support it — denote the approach of a crisis in our affairs 
 on which the continuance of our unexampled prosperity, 
 our political existence, and perhaps that of all free gov- 
 ernments, may depend. The conjuncture demanded a free, 
 a full, and explicit enunciation, not only of my intentions, 
 but of my principles of action; and as the claim was 
 asserted of a right by a State to annul the laws of the 
 Union, and even to secede from it at pleasure, a frank 
 exposition of my opinions in relation to the origin and 
 form of our government, and the construction I give to 
 the instrument by which it was created, seemed to be 
 proper. Having the fullest confidence in the justness 
 of the legal and constitutional opinion of my duties 
 which has been expressed, I rely with equal confidence 
 on your undivided support in my determination to exe- 
 cute the laws — to preserve the Union by all constitu- 
 tional means — to arrest, if possible, by moderate but 
 firm measures, the necessity of a recourse to force; and 
 if it be the will of Heaven that the recurrence of its 
 primeval curse on man for the shedding of a brother's 
 blood should fall upon our land, that it be not called 
 down by any offensive act on the part of the United 
 States. 
 
 Fellow-citizens! the momentous case is before you. On 
 your undivided support of your government depends the 
 decision of the great question it involves, whether your 
 sacred Union will be preserved, and the blessing it se- 
 cures to us as one people shall be perpetuated. No one 
 can doubt that the unanimity with which that decision 
 will be expressed, will be such as to inspire new con- 
 
President Jackson's Proclamation 361 
 
 fldence in republican institutions, and that the prudence, 
 the wisdom, and the courage which it will bring to their 
 defence, will transmit them unimpaired and invigorated 
 to our children. 
 
 May the Great Ruler of nations grant that the signal 
 blessings with which He has favored ours may not, by the 
 madness of party, or personal ambition, be disregarded 
 and lost, and may His wise providence bring those who 
 have produced this crisis to see the folly, before they 
 feel the misery, of civil strife, and inspire a returning 
 veneration for that Union, which, if we may dare to 
 penetrate His designs. He has chosen, as the only means 
 of attaining the high destinies to which we may reason- 
 ably aspire. 
 
 In testimony whereof, I have caused the seal of the 
 United States to be hereunto affixed, having signed the 
 same with my hand. 
 
 Done at the City of Washington, this 10th day of 
 December, in the year of our Lord one thousand eight 
 hundred and thirty-two, and of the independence of the 
 United States the fifty-seventh. 
 
 Andrew Jackson. 
 By the President, 
 
 Edward Livingston^ Secretary of State. 
 
ABSTRACT OF THE DRED SCOTT DECISION, 1857 
 
 The question is simply this: Can a negro, whose an- 
 cestors were imported into this country, and sold as 
 slaves, become a member of the political community 
 formed and brought into existence by the Constitution 
 of the United States, and as such become entitled to all 
 the rights, and privileges, and immunities, guaranteed 
 by that instrument to the citizens ? One of which rights 
 is the privilege of suing in a court of the United States 
 in the cases specified in the Constitution. 
 
 It will be observed, that the plea applies to that class 
 of persons only whose ancestors were negroes of the 
 African race, and imported into this country, and sold 
 and held as slaves. The only matter at issue before 
 the court, therefore, is, whether the descendants of such 
 slaves, when they shall be emancipated, or who are born 
 of parents who had become free before their birth, are 
 citizens of a State, in the sense in which the word 
 citizen is used in the Constitution of the United States. 
 And this being the only matter in dispute on the plead- 
 ings, the court must be understood as speaking in this 
 opinion of that class only. That is, of those persons 
 who are the descendants of Africans who were imported 
 into this country, and sold as slaves. . . . 
 
 The words "people of the United States" and " citizen " 
 are synonymous terms, and mean the same thing. They 
 both describe the political body who, according to our 
 
 362 
 
Abstract of Dred Scott Decision 363 
 
 republican institutions, form the sovereignty, and who 
 hold the power and conduct the government through their 
 representatives. They are what we familiarly call the 
 " sovereign people," and every citizen is one of this peo- 
 ple, and a constituent member of this sovereignty. The 
 question before us is, whether the class of persons de- 
 scribed in the plea in abatement compose a portion of 
 this people, and are constituent members of this sov- 
 ereignty? We think they are not, and that they are 
 not included, and were not intended to be included, un- 
 der the word " citizens " in the Constitution, and can 
 therefore claim none of the rights and privileges which 
 that instrument provides for and secures to citizens of 
 the United States. On the contrary, they were at that 
 time considered as a subordinate and inferior class of 
 beings, who had been subjugated by the dominant race, 
 and whether emancipated or not, yet remained subject 
 to their authority, and had no rights or privileges but 
 such as those who held the power and the government 
 might choose to grant them. 
 
 It is not the province of the court to decide upon the 
 justice or injustice, the policy or impolicy, of these laws. 
 The decision of that question belonged to the political 
 or law-making power; to those who formed the sov- 
 ereignty and framed the Constitution. The duty of the 
 court is, to interpret the instrument they have framed, 
 with the best lights we can obtain on the subject, and 
 to administer it as we find it, according to its true in- 
 tent and meaning when it was adopted. 
 
 In discussing this question we must not confound the 
 rights of citizenship which a State may confer within 
 its own limits, and the rights of citizenship as a member 
 of the Union. It does not by any means follow, because 
 he has all the rights and privileges of a citizen of a 
 State, that he must be a citizen of the United States. 
 He may have all the rights and privileges of the citizen 
 
364 Story of the Constitution 
 
 of a state, and yet not be entitled to the rights and 
 privileges of a citizen in any other State. For, previous 
 to the adoption of the Constitution of the United States, 
 every State had the undoubted right to confer on whom- 
 soever it pleased the character of citizen, and to endow 
 him with all its rights. But this character of course 
 was confined to the boundaries of the State, and gave 
 him no rights or privileges in other States beyond those 
 secured to him by the laws of nations and the comity 
 of States. Nor have the several States surrendered the 
 power of conferring these rights and privileges by adopt- 
 ing the Constitution of the United States. Each State 
 may still confer them upon an alien, or any one it thinks 
 proper, or upon any class or description of persons; yet 
 he would not be a citizen in the sense in which that 
 word is used in the Constitution of the United States, 
 nor entitled to sue as such in one of its courts, nor to 
 the privileges and immunities of a citizen in the other 
 States. The rights which he would acquire would be 
 restricted to the State which gave them. The Consti- 
 tution has conferred on Congress the right to establish 
 an uniform rule of naturalization, and this right is evi- 
 dently exclusive, and has always been held by this court 
 to be so. Consequently, no State, since the adoption of 
 the Constitution, can by naturalizing an alien invest him 
 with the rights and privileges secured to a citizen of a 
 State under the Federal Government, although, so far 
 as the State alone was concerned, he would undoubtedly 
 be entitled to the rights of a citizen, and clothed with 
 all the rights and immunities which the Constitution 
 and laws of the State attached to that character. 
 
 It is very clear, therefore, that no State can, by any 
 act or law of its own, passed since the adoption of 
 the Constitution, introduce a new member into the po- 
 litical community created by the Constitution of the 
 United States. It cannot make him a member of this 
 
Abstract of Dred Scott Decision 365 
 
 community by making him a member of its own. And 
 for the same reason it cannot introduce any person, or 
 description of persons, who were not intended to be em- 
 braced in this new political family, which the Consti- 
 tution brought into existence, but were intended to be 
 excluded from it. 
 
 The question then arises, whether the provisions of 
 the Constitution, in relation to the personal rights and 
 privileges to which the citizen of a State should be en- 
 titled, embraced the negro African race, at that time in 
 this country, or who might afterward be imported, who 
 had then or should afterward be made free in any State; 
 and to put it in the power of a single State to make him 
 a citizen of the United States, and endue him with the 
 full rights of citizenship in every other State without 
 their consent? Does the Constitution of the United 
 States act upon him whenever he shall be made free 
 under the laws of the State, and raised there to the 
 rank of a citizen, and immediately clothe him with all 
 the privileges of a citizen in every other State, and in 
 its own courts? 
 
 The court think the affirmative of these propositions 
 cannot be maintained. And if it cannot, the plaintifif in 
 error could not be a citizen of the State of Missouri, 
 within the meaning of the Constitution of the United 
 States, and, consequently, was not entitled to sue in 
 its courts. 
 
 • •••••• 
 
 But the power of Congress over the person or prop- 
 erty of a citizen can never be a mere discretionary power 
 under our Constitution and form of government. The 
 powers of the government and the rights and privileges 
 of the citizen are regulated and plainly defined by the 
 Constitution itself. And when the territory becomes a 
 part of the United Sfates, the Federal Government enters 
 into possession in the character impressed upon it by 
 
366 Story of the Constitution 
 
 those who created it. . . . The territory being a part 
 of the United States, the government and the citizen 
 both enter it under the authority of the Constitution, 
 with their respective rights defined and marked out; 
 and the Federal Government can exercise no power over 
 his person or property, beyond what that instrument 
 confers, nor lawfully deny any right which it has 
 reserved. . . . 
 
 These powers, and others, in relation to rights of per- 
 son, . . . are, in express and positive terms, denied to 
 the general government; and the rights of private prop- 
 erty have been guarded with equal care. Thus the rights 
 of property are united with the rights of person, and 
 placed on the same ground by the Fifth Amendment to 
 the Constitution, which provides that no person shall 
 be deprived of life, liberty, and property, without due 
 process of law. And an act of Congress which deprives 
 a citizen of the United States of his liberty or property, 
 merely because he came himself or brought his property 
 into a particular territory of the United States, and 
 who had committed no offence against the laws, could 
 hardly be dignified with the name of due process of 
 law. . . . 
 
 The powers over person and property of which we 
 speak are not only not granted to Congress, but are in 
 express terms denied, and they are forbidden to exercise 
 them. And this prohibition is not confined to the States, 
 but the words are general, and extend to the whole 
 territory over which the Constitution gives it power to 
 legislate, including those portions of it remaining under 
 territorial government, as well as that covered by States. 
 It is a total absence of power everywhere within the 
 dominion of the United States, and places the citizens 
 of a territory, so far as these rights are concerned, on 
 the same footing with citizens of the States, and guards 
 them as firmly and plainly against any inroads which 
 
Abstract of Dred Scott Decision 367 
 
 the general government might attempt, under the plea 
 of implied or incidental powers. . . . 
 
 And if the Constitution recognizes the right of prop- 
 erty of the master in a slave, and makes no distinction 
 between that description of property and other property 
 owned by a citizen, no tribunal, acting under the au- 
 thority of the United States, whether it be legislative, 
 executive, or judicial, has a right to draw such a dis- 
 tinction, or deny to it the benefit of the provisions and 
 guarantees which have been provided for the protection 
 of private property against the encroachments of the 
 government. 
 
 Now . . . the right of property in a slave is distinctly 
 and expressly affirmed in the Constitution. 
 
 Upon these considerations, it is the opinion of the 
 court that the act of Congress [Missouri Compromise] 
 which prohibited a citizen from holding and owning prop- 
 erty of this kind in the territory of the United States 
 north of the line therein mentioned, is not warranted 
 by the Constitution, and is, therefore, void; and that 
 neither Dred Scott himself, nor any of his family, were 
 made free by being carried into this territory; even if 
 they had been carried there by the owner, with the in- 
 tention of becoming a permanent resident. 
 
SOUTH CAROLINA ORDINANCE OF SECESSION, 
 
 1860 
 
 An ordinance to dissolve the Union between the State 
 of South Carolina and other States united with her 
 under the compact entitled " The Constitution of the 
 United States of America." 
 
 We, the People of the State of South Carolina, in 
 Convention assembled, do declare and ordain, and it is 
 hereby declared and ordained, that the ordinance adopted 
 by us in Convention, on the twenty-third day of May, in 
 the year of our Lord one thousand seven hundred and 
 eighty-eight, whereby the Constitution of the United 
 States of America was ratified, and also, all Acts and 
 parts of Acts of the General Assembly of this State, 
 ratifying amendments of the said Constitution, are 
 hereby repealed; and the union now subsisting between 
 South Carolina and other States, under the name of 
 " The United States of America," is hereby dissolved. 
 
 368 
 
SOUTH CAROLINA DECLARATION OP 
 INDEPENDENCE, 1860 
 
 The State of South Carolina having resumed her sepa- 
 rate and equal place among nations, deems it due to 
 herself, to the remaining United States of America, and 
 to the nations of the world, that she should declare the 
 causes which have led to this act. 
 
 In the year 1765, that portion of the British Empire 
 embracing Great Britain, undertook to make laws for 
 the government of that portion composed of the thirteen 
 American Colonies. A struggle for the right of self- 
 government ensued, which resulted, on the 4th July, 1776, 
 in a Declaration by the Colonies, " that they are, and 
 of right ought to be, free and independent states, and 
 that, as free and independent States, they have full 
 power to levy war, to conclude peace, contract alliances, 
 establish commerce, and do all other acts and things 
 which independent States may of right do." 
 
 They further solemnly declare, that whenever any 
 " form of government becomes destructive of the ends 
 for which it was established, it is the right of that peo- 
 ple to alter or abolish it, and to institute a new govern- 
 ment." Deeming the Government of Great Britain to 
 have become destructive of these ends, they declared that 
 the Colonies " are absolved from all allegiance to the 
 British Crown, and that all political connection between 
 them and the State of Great Britain is, and ought to 
 be, totally dissolved." 
 
 24 369 
 
3 7° Story of the Constitution 
 
 In pursuance of this Declaration of Independence, 
 each of the thirteen States proceeded to exercise its 
 separate sovereignty; adopted for itself a Constitution, 
 and appointed oflBcers for the administration of govern- 
 ment in all its departments — Legislative, Executive, and 
 Judicial. 
 
 Thus were established the two great principles as- 
 serted by the Colonies, namely: the right of a State to 
 govern itself; and the right of a people to abolish a 
 Government when it becomes destructive of the ends 
 for which it was instituted. And concurrent with the 
 establishment of these principles, was the fact, that each 
 colony became and was recognized by the mother coun- 
 try as a FREE, SOVEREIGN^ and independent state. 
 
 In 1787, Deputies were appointed by the States to 
 revise the Articles of Confederation, and on 17th Sep- 
 tember, 1787, these Deputies recommended, for the adop- 
 tion of the States, the Articles of Union, known as the 
 Constitution of the United States. 
 
 The parties to whom the Constitution was submitted 
 were the several sovereign States ; they were to agree or 
 disagree, and when nine of them agreed, the compact 
 was to take effect among those concurring; and the 
 General Government, as the common agent, was then to 
 be vested with their authority. 
 
 If only nine of the thirteen States had concurred, the 
 other four would have remained as they were — separate, 
 sovereign States, independent of any of the provisions 
 of the Constitution. In fact, two of the States did not 
 accede to the Constitution until long after it had gone 
 into operation among the other eleven ; and during that 
 interval, they exercised the functions of an independent 
 nation. 
 
 By this Constitution, certain duties were imposed upon 
 the several States, and the exercise of certain of their 
 
South Carolina Declaration 371 
 
 powers was restrained. ... To remove all doubt, an 
 amendment was added, which declared that the powers 
 not delegated to the United States by the Constitution, 
 nor prohibited by it to the States, are reserved to the 
 States, respectively, or to the people. On 23d May, 1788, 
 South Carolina, by a Convention of her people, passed 
 an Ordinance assenting to this Constitution, and after- 
 wards altered her own Constitution to conform herself 
 to the obligation she had undertaken. 
 
 Thus was established, by compact between the States, 
 a Government, with defined objects and powers, limited 
 to the express words of the grant. This limitation left 
 the whole remaining mass of power subject to the clause 
 reserving it to the States or to the people, and rendered 
 unnecessary any specification of reserved powers. 
 
 We hold that the Government thus established is sub- 
 ject to the two great principles asserted in the Declara- 
 tion of Independence; and we hold further, that the 
 mode of its formation subjects it to the third funda- 
 mental principle, namely: the law of compact. We 
 maintain that in every compact between two or more 
 parties, the obligation is mutual; that the failure of 
 one of the contracting parties to perform a material 
 part of the agreement, entirely releases the obligation 
 of the other; and that where no arbiter is provided, 
 each party is remitted to its own judgment to determine 
 the fact of failure with all its consequences. 
 
 The ends for which this Constitution was framed are 
 declared by itself to be " to form a more perfect union, 
 establish justice, insure domestic tranquillity, provide 
 for the common defence, promote the general welfare, 
 and secure the blessings of liberty to ourselves and 
 posterity." 
 
 These ends it endeavored to accomplish by a Federal 
 
372 Story of the Constitution 
 
 Government, in which each State was recognized as an 
 equal, and had separate control over its own institutions. 
 The right of property in slaves was recognized by giv- 
 ing to free persons distinct political rights, by giving 
 them the right to represent, and burthening them with 
 direct taxes for three-fifths of their slaves ; by authorizing 
 the importation of slaves for twenty years ; and by stipu- 
 lating for the rendition of fugitives from labor. 
 
 We affirm that these ends for which this Government 
 was instituted have been defeated, and the Government 
 itself has been made destructive of them by the action 
 of the non-slaveholding States. These States have as- 
 sumed the right of deciding upon the propriety of our 
 domestic institutions ; and have denied the rights of prop- 
 erty established in fifteen of the States and recognized 
 by the Constitution; they have denounced as sinful the 
 institution of Slavery; they have permitted the open 
 establishment among them of societies, whose avowed 
 object is to disturb the peace and to eloign the prop- 
 erty of the citizens of other States. They have en- 
 couraged and assisted thousands of our slaves to leave 
 their homes ; and those who remain, have been incited by 
 emissaries, books and pictures to servile insurrection. 
 
 For twenty-five years this agitation has been steadily 
 increasing, until it has now secured to its aid the power 
 of the Common Government. Observing the forms of the 
 Constitution, a sectional party has found within that 
 article establishing the Executive Department, the means 
 of subverting the Constitution itself. A geographical 
 line has been drawn across the Union, and all the States 
 north of that line have united in the election of a man 
 to the high office of President of the United States whose 
 opinions and purposes are hostile to slavery. He is to 
 be entrusted with the administration of the Common 
 Government, because he has declared that " Government 
 cannot endure permanently half slave, half free," and 
 
South Carolina Declaration 373 
 
 that the public mind must rest in the belief that Slavery 
 is in the course of ultimate extinction. 
 
 On the ith March next, this party will take possession 
 of the Government. It has announced, that the South 
 shall be excluded from the common Territory; that the 
 Judicial Tribunals shall be made sectional, and that a 
 war must be waged against slavery until it shall cease 
 throughout the United States. 
 
 The Guarantees of the Constitution will then no longer 
 exist; the equal rights of the States will be lost. The 
 slaveholding States will no longer have the power of 
 self-government, or self-protection, and the Federal Gov- 
 ernment will have become their enemy. 
 
 Sectional interest and animosity will deepen the irri- 
 tation, and all hope of remedy is rendered vain, by the 
 fact that public opinion at the north has invested a 
 great political error with the sanctions of a more 
 erroneous religious belief. 
 
 We, therefore, the people of South Carolina, by our 
 delegates, in Convention assembled, appealing to the 
 Supreme Judge of the world for the rectitude of our 
 intentions, have solemnly declared that the Union hereto- 
 fore existing between this State and the other States 
 of North America, is dissolved, and that the State of 
 South Carolina has resumed her position among the 
 nations of the world, as a separate and independent State ; 
 with full power to levy war, conclude peace, contract al- 
 liances, establish commerce, and to do all other acts and 
 things which independent States may of right do. 
 
PROCLAMATION OF EMANCIPATION 
 January 1, 1863 
 
 Whereas, on the twenty-second day of September, in 
 the year of our Lord one thousand eight hundred and 
 sixty-two, a proclamation was issued by the President of 
 the United States, containing, among other things, the 
 following, to wit: 
 
 " That on the first day of January, in the year of our 
 Lord one thousand eight hundred and sixty- three, all per- 
 sons held as slaves within any State or designated part 
 of a State, the people whereof shall then be in rebellion 
 against the United States, shall be then, thenceforward, 
 and forever free; and the Executive Government of the 
 United States, including the military and naval authority 
 thereof, will recognize and maintain the freedom of such 
 persons, and will do no act or acts to repress such per- 
 sons or any of them, in any efforts they may make for 
 their actual freedom. 
 
 " That the Executive will, on the first day of January 
 aforesaid, by proclamation, designate the States and parts 
 of States, if any, in which the people thereof respectively 
 shall then be in rebellion against the United States; and 
 the fact that any State, or the people thereof, shall on 
 that day be in good faith represented in the Congress 
 of the United States, by members chosen thereto at elec- 
 tions wherein a majority of the qualified voters of such 
 State shall have participated, shall, in the absence of 
 strong countervailing testimony, be deemed conclusive 
 
 374 
 
Proclamation of Emancipation 375 
 
 evidence that such State, and the people thereof, are not 
 then in rebellion against the United States." 
 
 'Now, therefore, I, Abraham Lincoln^ President of the 
 United States, by virtue of the power in me vested as 
 Commander-in-Chief of the army and navy of the United 
 States in time of actual armed rebellion against the 
 authority and government of the United States, and as 
 a fit and necessary war measure for suppressing said re- 
 bellion, do, on this first day of January, in the year of 
 our Lord one thousand eight hundred and sixty-three, 
 and in accordance with my purpose so to do, publicly 
 proclaimed for the full period of one hundred days from 
 the day first above mentioned, order and designate, as 
 the States and parts of States wherein the people thereof 
 respectively are this day in rebellion against the United 
 States, the following, to wit: 
 
 Arkansas, Texas, Louisiana (except the parishes of St. 
 Bernard, Plaquemine, Jefferson, St. John, St. Charles, 
 St. James, Ascension, Assumption, Terre Bonne, La- 
 fourche, St. Marie, St. Martin, and Orleans, including 
 the city of New Orleans), Mississippi, Alabama, Florida, 
 Georgia, South Carolina, North Carolina, and Virginia 
 (except the forty-eight counties designated as West Vir- 
 ginia, and also the counties of Berkley, Accomac, North- 
 ampton, Elizabeth City, York, Princess Anne, and 
 Norfolk, including the cities of Norfolk and Portsmouth ) , 
 and which excepted parts are for the present left precisely 
 as if this proclamation were not issued. 
 
 And, by virtue of the power and for the purpose afore- 
 said, I do order and declare that all persons held as 
 slaves within said designated States and parts of States 
 are and henceforth shall be free; and that the Executive 
 Government of the United States, including the military 
 and naval authorities thereof, will recognize and main- 
 tain the freedom of said persons. 
 
 And I hereby enjoin upon the people so declared to be 
 
3 76 Story of the Constitution 
 
 free, to abstain from all violence, unless in necessary 
 self-defence; and I recommend to them that in all cases, 
 when allowed, they labor faithfully for reasonable wages. 
 
 And I further declare and make known that such per- 
 sons of suitable condition will be received into the armed 
 service of the United States, to garrison forts, positions^ 
 stations, and other places, and to man vessels of all 
 sorts in said service. 
 
 And upon this act, sincerely believed to be an act of 
 justice, warranted by the Constitution, upon military 
 necessity, I invoke the considerate judgment of mankind 
 and the gracious favor of Almighty God. 
 
 In testimony whereof, I have hereunto set my name, 
 and caused the seal of the United States to be affixed. 
 Done at the City of Washington, this first day of Janu- 
 ary, in the year of our Lord one thousand eight 
 [l. s.] hundred and sixty-three, and of the Independence 
 of the United States the eighty-seventh. 
 
 Abraham Lincoln. 
 By the President: 
 William H. Sbwakd, Secretary of State. 
 
BIBLIOGRAPHY 
 
 The following list is intended to serve merely as an intro- 
 duction to the study of our constitutional history. For general 
 bibliographies, see Channing and Hart, Guide to the Study of 
 American History, Boston, 1896, and Hart, Manual of Ameri- 
 can History, Diplomacy, and Government, Cambridge, 1908. 
 Also each volume of The American Nation series contains a 
 critical essay on the authorities for the period covered. 
 
 General 
 
 American Nation, The, ed. by A. B. Hart. 27 v. N. Y., 1905- 
 
 1907. Vols. 10-26. 
 Bryce, James, The American Commonwealth. 2 v. 3 ed. 
 
 N. Y., 1906. 
 CooLEY, T. M., and others. Constitutional History as seen in 
 
 the Development of American Law. N. Y., 1889. 
 CoxE, Brinton, Judicial Power and Unconstitutional Legisla- 
 tion. Phila., 1893. 
 Curtis, G. T., Constitutional History of the United States from 
 
 the Declaration of Independence. 2 v. N. Y., 1889. 
 Documentary History of the Constitution of the United States 
 
 of America, 1786-1870. 3 v. Washington, Department of 
 
 State, 1894. 
 Ford, H. J,, The Rise and Growth of American Politics. N. Y., 
 
 1899. 
 HoLST, H. von. The Constitutional History of the United States, 
 
 1750-1861. 8 V. Chicago, 1877-1892. 
 Johnston, Alexander, American Political History, 176S-1876. 
 
 Ed. by J. A. Woodburn. N. Y., 1905. 
 Kent, James, Commentaries on American Law. 4 v. 14 ed. 
 
 Boston, 1896. 
 
 377 
 
2,7^ Story of the Constitution 
 
 McKee, T. J., National Conventions and Platforms. Baltimore, 
 
 1906. 
 Mbreiam, C. E., American Political Theories. N. Y., 1903. 
 Messages and Papers of the Presidents. 10 v. Washington, 
 
 1899. 
 Stephens, Alexander H., Constitutional View of the Late 
 
 War between the States. 2 v. Philadelphia, 1868-1870. 
 Story, Joseph, Commentaries on the Constitution of the United 
 
 States. 2 V. 5 ed. Boston, 1891. 
 Thorpe, F. N., The Constitutional History of the American 
 
 People. 1776-1850. 2 v. N. Y., 1898. 
 United States Supreme Court Reports: Dallas, 1790-1800; 
 
 Cranch, 1801-1815; Wheaton, 1816-1827; Peters, 1828- 
 
 1842; Howard, 1843-1860; Black, 1861-1862; Wallace, 
 
 1863-1874; U. S. Reports, 1875- 
 
 The Constitutional Convention 
 
 Documentary History of the Constitution of the United States 
 of America. 1786-1870. Vol. iii. 
 
 Elliot, Debates. 5 vols. New reprint. Philadelphia, 1888. 
 
 Farrand, Max, The Compromises of the Constitution, in The 
 American Historical Review, April, 1904. 
 
 The Records of the Federal Convention, in Am. Hist. Rev. 
 
 Oct., 1907. 
 
 Federalist, eds. by Paul Leicester Ford, N. Y., 1898, and H. C. 
 Lodge, N. Y., 1904. 
 
 Fiske, John, The Critical Period of American History. Bos- 
 ton and N. Y., 1899. 
 
 Ford, Paul Leicester, Pamphlets on the Constitution of the 
 United States, published during its discussion by the peo- 
 ple, 1787-1788. Edited with notes and a bibliography. 
 Brooklyn, 1888. 
 
 Hamilton, Alexander, Notes on the Federal Constitution of 
 1787, in Am. Hist. Rev. Oct., 1904. 
 
 Jameson, J. F., Studies in the History of the Federal Conven- 
 tion. Annual Report of the American Historical Associa- 
 tion. 1902. 
 
 King, Rupus, Life and Correspondence, edited by C. R. King, 
 N. Y., 1894-1900. Vol. i.. Appendix contains King's Notes 
 of the Constitutional Convention of 1787. 
 
Bibliography 379 
 
 Madison, James, Writings, ed. by Gaillard Hunt. 7 v. N. Y., 
 1900-1908. Vols. iii. and iv. contain the Journal of the 
 Constitutional Convention. 
 
 McHeney, James, Papers on the Federal Convention of 1787, 
 in Am. Hist. Rev. April, 1906. 
 
 McLaughlin, A. C, The Confederation and the Constitution. 
 N. Y., 1905. (American Nation Series.) 
 
 Martin, Luther, Genuine Information, in Elliotts Debates, vol. i. 
 
 Meigs, Wm. M., The Growth of the Constitution in the Federal 
 Convention of 1787. Phila., 1900. 
 
 Paterson, William, Papers on the Federal Convention of 1787, 
 in Am. Hist. Rev. Jan., 1904. 
 
 Pierce, William, Notes on the Federal Convention of 1787, 
 in Am. Hist. Rev. Jan., 1898. 
 
 Yates, Robert, Secret Proceedings and Debates of the Conven- 
 tion Assembled at Philadelphia, 1787, for the Purpose of 
 Forming the Constitution of the United States in Elliot's 
 Debates, vol. i. 
 
 Hamilton 
 
 Bassett, J. S., The Federalist System, 1789-1801. N. Y., 1906. 
 
 (Am. Nat. Ser.) 
 Hamilton, Alexander, Works, ed. by H. C. Lodge. Constitu- 
 tional Edition. N. Y., 1904. 
 Hamilton, J. C, History of the Republic , . . as Traced in the 
 
 Writings of Alexander Hamilton and his Contemporaries. 
 
 7 V. 4 ed. Boston, 1879. 
 Hamilton, J. C, Life of Alexander Hamilton. 2 v. N. Y., 
 
 1840. 
 Lodge, H. C, Alexander Hamilton. Boston and N. Y. 1886. 
 
 (American Statesmen Ser.) 
 Morse, J. T., Jr., Ldfe of Alexander Hamilton. 2 v. Boston, 
 
 1882. 
 MuLFOED, R. J., The Political Theories of Alexander Hamilton. 
 
 (Johns Hopkins University Thesis, 1903.) 
 Oliver, Frederick Scott, Alexander Hamilton. An Essay on 
 
 American Union. New edition. N. Y., 1907. 
 Sumner, W. G., Alexander Hamilton. N. Y., 1890. (Makers 
 
 of America Ser.) 
 
38o Story of the Constitution 
 
 Wilson 
 
 Alexander, L. H., James Wilson, Patriot, and the Wilson 
 Doctrine in North American Review, vol. 183, No. 8. Mid- 
 Nov. 1906. 
 
 KoNKLE, B. A., James Wilson and the Constitution. Phil., 1907. 
 
 McLaughlin, A. C, James Wilson and the Constitution in Pol. 
 Sc. Qt. March, 1897. 
 
 McMastee and Stone, Pennsylvania and the Federal Consti- 
 tution. Lancaster, Pa., 1888. 
 
 Sanderson, J., Biography of the Signers of the Declaration of 
 Independence. Vol. iii., pp. 259-301. Phil., 1828. 
 
 Wilson, James, Works, ed. by James DeWitt Andrews. 2 v. 
 Chicago, 1896. 
 
 Jefferson 
 
 Adams, Henry, History of the United States, 1801-1817. 9 v. 
 
 N. Y., 1889-91. Vols, i.-iv. 
 Channing, Edward, The Jeffersonian System, 1801-1811. N. Y., 
 
 1906. (Am. Nat. Ser.) 
 Jefferson, Thomas, Writings. Memorial Edition. 20 v. Wash- 
 ington, 1903-1904. 
 Also editions by P. L. Ford, 10 v. N. Y., 1892-1899, and 
 
 by H. A. Washington, 9 v. N. Y., 1861. 
 Morse, J. T., Jr., Thomas Jefferson. Boston and N. Y., 1895. 
 
 (Amer. Stat. Ser.) 
 Parton, James, Life of Thomas Jefferson. 2 v. Boston, 1874. 
 Randall, H. S., Life of Thomas Jefferson. 3 v. N. Y., 1858. 
 Schouler, James, Thomas Jefferson. N. Y., 1893. (Makers 
 
 of America Ser.) 
 Tucker, George, Life of Thomas. Jefferson. 2 v. Philadelphia, 
 
 1837. 
 
 Madison 
 
 Adams, Henry, History of the United States. Vols, v.-ix. 
 Babcock, K. C, The Rise of American Nationality, 1811-1819, 
 
 N. Y., 1906. (Am. Nat. Ser.) 
 Gay, S. W., James Madison. Boston and N. Y., 1899. (Amer, 
 
 Stat. Ser.) 
 Hunt, Gaillard, Life of James Madison. N. Y. 1902. 
 Madison, James, Letters and other Writings. 4 v. Phil., 1865. 
 Writings. Ed. by Gaillard Hunt. 7 v. N. Y., 1900-1908. 
 
Bibliography 381 
 
 Rives, W. C, History of the Life and Times of James Madison. 
 3 V. Boston, 1859-1863. 
 
 Marshall 
 
 Carson, H. L., The Supreme Court of the United States. 2 v. 
 
 Phil., 1891. 
 Constitutional Decisions of John Marshall. Ed. by Joseph P. 
 
 Cotton, Jr. N. Y. 1905. 
 Flanders, Henry, Life of John Marshall, in Lives and Times 
 
 of the Chief Justices of the United States. Vol. ii., pp. 
 
 279-550. 
 Magruder, a. B., John Marshall. Boston, 1887. (Amer. Stat. 
 
 Ser.) 
 Phillips, U. B., Georgia and State Rights, in Annual Report of 
 
 Am. Hist. Assoc, 1901. Vol. ii. Washington, 1902. 
 Van Santvoord, George, Sketches of the Lives of the Chief 
 
 Justices of the United States. Vol. iv., pp. 293-456. N. Y., 
 
 1854. 
 
 Jackson 
 
 Benton, Thomas H., Thirty Years' View; or, a History of the 
 
 Working of the American Government for Thirty Years, 
 
 from 1820 to 1850. 2 v. N. Y., 1854-1856. 
 Buell, a. C, History of Andrew Jackson. N. Y., 1904. 
 Burgess, John W., The Middle Period.. N. Y., 1905. 
 Jackson, Andrew, Statesmanship of, as Told in his Writings and 
 
 Speeches. Ed. by F. N. Thorpe. N. Y., 1909. 
 McDonald, William, Jacksonian Democracy, 1829-1837. N. Y., 
 
 1906. (Am. Nat. Ser.) 
 Parton, James, Life of Andrew Jackson. 3 v. N. Y., 1860. 
 Peck, C. H., The Jacksonian Epoch. N. Y. and London, 1899. 
 Powell, E. P., Nullification and Secession in the United States. 
 
 N. Y., 1897. 
 RoYALL, W. S., Andrew Jackson and the Bank of the United 
 
 States. N. Y., 1880. 
 Sumner, W. G., Andrew Jackson as a Public Man. Boston and 
 
 N. Y., 1899. (Am. Stat. Ser.) 
 Turner, Frederick J., The Rise of the New West, 1819-1829. 
 
 N. Y., 1906. (Am. Nat. Ser.) 
 
 Webster 
 Benton, Thirty Years' View. 
 
382 Story of the Constitution 
 
 Burgess, The Middle Period. 
 
 Hart, A. B., Slavery and Abolition, 18Sl-18i.l. N. Y., 1906. 
 
 (Am. Nat. Ser.) 
 LORING, C. W., Nullification, Secession, Webster's Argument, 
 
 and the Kentucky and Viriginia Resolutions Considered in 
 
 Reference to the Constitution and Historically. N. Y., 1893. 
 McMaster, J. B., Daniel Webster. N. Y., 1902. 
 Powell, E. P., Nullification and Secession in the United States. 
 Taussig, F. W., The Tariff History of the United States. 6th ed. 
 
 N. Y. and London, 1905. 
 Writings and Speeches of Daniel Webster, National edition. 
 
 18 V. Boston, 1903. 
 
 Calhoun 
 
 Calhoun, John C, Correspondence. Ed. by J. F. Jameson in 
 Annual Report of the American Historical Association for 
 1899. Vol. 2. Washington, 1901. 
 
 Works. Ed. by R. K. Cralle. 6 v. N. Y., 1861-1874. 
 
 Curry, J. L. M., Civil History of the Government of the Con- 
 federate States. Richmond, 1901. 
 
 Davis, Jefferson, Rise and Fall of the Confederate Govern- 
 ment. 3 V. N. Y., 1881. 
 
 Houston, D. F., A Critical Study of Nullification in South 
 Carolina. N. Y. and London, 1896. (Harvard Historical 
 Studies.) 
 
 HOLST, H. von, John C. Calhoun. Boston and N. Y., 1899. 
 (Am. Stat. Ser.) 
 
 Hunt, Gaillard, John C. Calhoun. Philadelphia, 1908. (Ameri- 
 can Crisis Biographies.) 
 
 Powell, Nullification and Secession. 
 
 Lincoln 
 
 Brooks, Noah, Abraham Lincoln and the Downfall of American 
 
 Slavery. N. Y., 1894. (Heroes of the Nations.) 
 Burgess, John W., The Civil War and the Constitution, 1859- 
 
 1885. 2 V. N. Y., 1901. 
 Dunning, W. A., Essays on the Civil War and Reconstruction. 
 
 N. Y., 1898. 
 Lincoln, Abraham, Complete Works. Ed. by Nicolay and Hay. 
 
 12 V. New ed. N. Y., 1905. 
 McCarthy, C. H., Lincoln's Plan of Reconstruction. N. Y., 
 
 1901. 
 
Bibliography 3^3 
 
 Morse, J. T., Jr., Abraham Lincoln. 2 v. Boston and N. Y., 
 
 1903. (Am. Stat. Ser.) 
 NicoLAY, J. G., A Short Life of Abraham Lincoln. N. Y., 1904. 
 NiCOLAY and Hay, Abraham Lincoln; a History. 10 v. N. Y., 
 
 1890. 
 Rhodes, James Ford, History of the United States from the 
 
 Compromise of 1850. (1850-1877.) 7 v. N. Y., 1893- 
 
 1906. 
 Smith, T. C, Parties and Slavery, 1850-1859. N. Y., 1906. 
 
 (Am. Nat. Ser.) 
 Tarbell, Ida M., lAfe of Abraham Lincoln. 2 v. N. Y., 1900. 
 
 Stevens 
 
 Blaine, James G., Twenty Years of Congress; from Lincoln to 
 Garfield. 2 v. Norwich, Conn., 1884-1886. 
 
 Burgess, John W., Reconstruction and the Constitution. N. Y., 
 1905. 
 
 Callender, E., Thaddeus Stevens; Commoner. Boston, 1882. 
 
 Congressional Globe, 1859-1868, passim for Stevens's speeches. 
 
 Dunning, W. A., Essays on the Civil War and Reconstruc- 
 tion. N. Y., 1898. 
 
 Reconstruction, Political and Economic. N. Y., 1907, (Am. 
 
 Nat. Ser.) 
 
 McCall, Samuel W., Thaddeus Stevens. Boston and N. Y., 
 1899. (Am. Stat. Ser.) 
 
 Rhodes, History of the United States. 
 
 Roosevelt 
 
 COOLIDGE, A. C, The United States as a World Power. N. Y., 
 
 1908. 
 Devitey, D. R., National Problems, 1885-1897. N. Y., 1907. 
 
 (Am. Nat. Ser.) 
 GiDDiNGS, Franklin W., Democracy and Empire. N. Y., 1900. 
 HOBSON, J. A., Imperialism, a Study. N. Y., 1902. 
 Jordan, David Starr, Imperial Democracy. N. Y., 1899. 
 Latane, J. H., America the World Power, 1897-1907. N. Y., 
 
 1907. 
 Pierce, Franklin, Federal Usurpation. N. Y., 1908. 
 Riis, Jacob A., Theodore Roosevelt, the Citizen. N. Y., 1904. 
 Roosevelt Policy, The; Speeches, Letters and State Papers, 
 
 Relating to Corporate Wealth and Closely Allied Topics of 
 
 Theodore Roosevelt. N. Y., 1908. 
 
384 Story of the Constitution 
 
 Roosevelt Doctrine, The; being the Personal Utterances of the 
 President on Various Matters of Vital Interest. Compiled 
 by E. E. Garrison, N. Y., 1904. 
 
 Sparks, E. E., National Development, 1877-1885. N, Y., 1907. 
 (Am. Nat. Ser.) 
 
 Stimson, F. J., The American Constitution. N. Y., 1908. 
 
INDEX 
 
 Adams, John, leader in po- 
 litical discussion, 5; not a 
 delegate to Constitutional 
 Convention, 12; member of 
 the committee to draft the 
 Declaration of Independence, 
 83; appointed to negotiate 
 commercial treaties, 88 ; 
 malignant assaults upon him, 
 95 ; commissioned Marbury 
 Justice of the Peace, 133 
 
 Adams, J. Q., elected President 
 by the House of Represen- 
 tatives, 157; had deserted 
 the Federalist party, 160; 
 supports the right of peti- 
 tion, 173 
 
 Adams, Samuel, leader in po- 
 litical discussion, 5 
 
 Alien and Sedition Acts, 95, 
 171; surpassed in their in- 
 fringement upon individual 
 liberty, 100; broke su- 
 premacy of Federalist party, 
 112 
 
 American Insurance Co. v. 
 Canter, 144 
 
 Annapolis Convention, consid- 
 ered commercial relations, 
 8; Hamilton drafted address 
 of, 9; recommended a gen- 
 eral convention, 9 ; Madison's 
 part in, 107-108 
 
 Articles of Confederation, see 
 Confederation 
 
 Bank, National, advocated by 
 
 Hamilton, 37; established, 
 46; constitutionality of, 48; 
 second United States Bank 
 attacked by Jackson, 160; 
 Webster's attitude toward, 
 185 ; text of Jefferson's opin- 
 ion on the constitutionality 
 of, 315 if; text of Hamil- 
 ton's opinion, 318 ff 
 
 Bedford declares small States 
 will seek foreign ally rather 
 than submit to compulsion 
 of Virginia plan, 16 
 
 Benjamin, Senator, accused 
 Douglas of breaking faith 
 with the South, 218 
 
 Bibliography, 377 # 
 
 Biddle, "Nick," 161 
 
 Bill of Rights, see Rights 
 
 Blaine, J. G., 232 
 
 Brearly proposed partition of 
 United States into thirteen 
 equal parts, 62 
 
 Buchanan, President, attitude 
 toward Secession, 221; be- 
 lieved Congress was power- 
 less to prevent Secession, 
 235 
 
 Burr, defended by Jackson in 
 public harangue, 154 
 
 Butler, interests of North and 
 South as different as those 
 of Russia and Turkey, 20; 
 advocates including blacks 
 equally with whites in rule 
 of representation, 20 
 
 Calhoun, John C, advances 
 idea of indivisibility of sov- 
 
 25 
 
 385 
 
 ^ir;;i. 
 
386 
 
 Index 
 
 Calhoun, John C. — Continued 
 ereignty, 124; logical suc- 
 cessor of Koane, 145; elected 
 Vice-President, 157; opposed 
 by Jackson in 1832, 162 ff; 
 course contrasted with that 
 of Webster, 171-172, 191- 
 194; chairman of the Com- 
 mittee on Foreign Affairs 
 and an advocate of the War 
 of 1812, 171, 192; resigned 
 office of Vice-President and 
 elected Senator, 179; argu- 
 ment oh Nullification, 179- 
 180 ; historical argument, 
 184; chronology, 190; sketch 
 of his life, 190 ff; the 
 product of a new era, 192; 
 Secretary of War and Vice- 
 President, 194; change from 
 national views, 195 ; " South 
 Carolina Exposition," a pro- 
 gramme of Nullification, 195; 
 disappointed in hope of re- 
 lief from Jackson, 196; 
 guiding spirit in South 
 Carolina's action, 196; op- 
 posed by President Jackson, 
 197; secures reduction of the 
 tariff, 198; love for the 
 Union, 198; views as to 
 the nature of the Union, 
 199 ff; the Constitution 
 a compact, 199-200, 205- 
 206; contradiction in his 
 view of democracy, 200; de- 
 veloped the idea of a " con- 
 current majority," 201; re- 
 jects the theory of social 
 contract, 202; origin of so- 
 ciety natural, of govern- 
 ment, by contract, 203; 
 logical character of his 
 thought, 204; change in 
 meaning of words due to 
 change in philosophical 
 thought, 205-206; sov- 
 ereignty regarded as in- 
 divisible and located in 
 the individual States, 206; 
 attitude toward slavery, 
 207; proposed amendment 
 to the Constitution to avoid 
 
 the dangers of disunion, 
 207 
 
 California, question of admis- 
 sion as a free State, 234 
 
 Chase, Justice, 132 
 
 Checks and balances, system 
 of, in Federal Government, 
 25, 128 
 
 Cherokee nation v. State of 
 Georgia, 164 
 
 Chisholm Vi Georgia, 72, 132 
 
 Civil Rights Bill, 245 
 
 Civil War, possibility of avert- 
 ing it by vigorous action in 
 1832, 163; began with firing 
 on Port Sumter, 237; effect 
 of, upon theory of our gov- 
 ernment, 261 
 
 Clay, Henry, representative of 
 new spirit of the West, 121 ; 
 favors J. Q. Adams's elec- 
 tion in House of Represen- 
 tatives, 157; leader of the 
 opposition to Jackson, 158; 
 leader in forcing on the War 
 of 1812, 171; the "great 
 compromiser," 177; repre- 
 sentative of national spirit 
 of the West, 192 
 
 Clinton, Governor, view of 
 New York's relation to the 
 Union, 37-38 
 
 Cohens v. Virginia, J.38, 139 
 
 Colonies, union of, to throw 
 off oppression, 7; acquisi- 
 tion of, by the United States, 
 255 
 
 Colonists, political theories of 
 the, 5; influenced by Locke 
 and Montesquieu, 6; devel- 
 oped new phase of rights, 6 
 
 Commerce, no power in the 
 Confederation to regulate, 
 8; regulation by Congress, 
 22-23 ; " commerce clause " 
 of Constitution basis of 
 large federal powers, 23; 
 power of Congress to regu- 
 late, 143; "commerce clause" 
 source of much of recent 
 growth of Constitution, 
 269 
 
 Compromise, Constitution, the 
 
Index 
 
 387 
 
 Compromise — Continued 
 
 result of, 4; first, between 
 large and small States, 14; 
 "Connecticut," 16-17; sec- 
 ond, on slave enumeration in 
 representation, 20-22; third, 
 on regulation of commerce, 
 22-23; fourth, on character 
 of Executive, 23-25; pro- 
 duced a government " partly 
 national and partly federal," 
 30; between the Federal 
 Government and South Caro- 
 lina, 198; compromise of 
 1850, 211; to reconcile the 
 South, 235 
 
 Confederate States of 
 America established, 220, 
 236 
 
 Confederation, weakness of, 7, 
 109; lack of power to reg:u- 
 late commerce, 8; need of 
 money, 46 
 
 Confederation, Articles of, 
 come into existence, 6; 
 amendment of, rejected by 
 Convention, 13; equality of 
 States under, 14; Hamilton 
 believed, must be swept 
 away, 36; appeals of the 
 Annapolis Convention for 
 revision of, 37; text of the, 
 279 ff 
 
 Confederation, Congress of, 
 large powers, but no ade- 
 quate means of enforcing 
 them, 7; no power to regu- 
 late commerce, 8; calls 
 Constitutional Convention, 
 10 
 
 Confiscation favored by Ste- 
 vens, 238 
 
 Congress, representation in, 
 17-18, 21-22; given power 
 to regulate interstate and 
 foreign commerce, 23 ; 
 leadership passes from the 
 Executive to Congress, 193; 
 power over slavery, 213; 
 Thaddeus Stevens a leader 
 of, 231; regarded by Presi- 
 dent Buchanan as powerless 
 to prevent Secession, 235; 
 
 attempts of, at reconciliation 
 with the South, 235; special 
 session of, July 4, 1861, 237; 
 representation in, of the re- 
 constructed States, 243, 249; 
 right of, to regulate the 
 government of national 
 territory, 261 
 Congressional caucus, 158 
 Connecticut Compromise 
 
 adopted, 16-17 
 Constitution, the story of, 3; 
 not solely the written in- 
 strument, 4; the result of 
 compromise, 4; literary 
 finish of, due to Gouvemeur 
 Morris, 11; ratification of, 
 by conventions of nine 
 States necessary for its 
 adoption, 13; growth 
 through interpretation, 26 ; 
 influence of the Federalist 
 upon adoption of, 41 ; Hamil- 
 ton's view as to the nature of 
 the, 43; "loose" and "strict" 
 construction of, 48-50; not a 
 compact according to Wil- 
 son, 70 ; bounds of " loose " 
 construction of the, passed, 
 96 ; " strict " construction of 
 the, and the purchase of 
 Louisiana, 98; regarded by 
 Madison as the social and 
 governmental contract, 115; 
 does not follow the flag, 120, 
 259; worship of the, 129; 
 " efficiency " of the, demon- 
 strated, 132-135; effect of 
 Jackson upon the, 158 ff; 
 whether or not a compact, 
 177; Webster's argument, 
 179 ff; Calhoun's, 199-200, 
 205-206; recognition of slav- 
 ery by the, 213; regarded as 
 indissoluble by Lincoln, 222; 
 proposed amendment to se- 
 cure slavery, 235; regarded 
 by Stevens as destroyed in 
 the seceding States, 239; de- 
 velopment of the, due to 
 territorial and commercial 
 expansion, 255 ff; text of 
 the, 292 ff 
 
388 
 
 Index 
 
 Constitutional Convention, 
 chronology, 2; character of 
 delegates in the, 10; declares 
 that a national government 
 ought to be established, 13; 
 decides to admit new States 
 on terms of equality with 
 the old, 19; main features of 
 the government elaborated 
 by the, 25; withdrawal from 
 the, of Yates and Lansing, 
 38; of Hamilton, 40; Wil- 
 son's part in the, 60 ff; 
 Madison's part in the, 107 jf; 
 alliance in the, of advocates 
 of State-Eights and of de- 
 mocracy, 200 
 
 Constitutionality, see Law 
 
 Continental Congress, 38 
 
 Contract, origin of society and 
 of government in, 5; the so- 
 cial, regarded as basis of 
 society by Wilson, 67; by 
 Madison, 115; the obligation 
 of, not to be impaired by 
 law, 174; as basis of society 
 rejected by Calhoun, 202 
 
 Cooper, Dr. Miles, President of 
 King's College, 33 
 
 Cooper V. Telfair, 132 
 
 Cooper Union speech, 219-220 
 
 Comwallis, 106 
 
 Corporations, effect of, on con- 
 stitutional development, 255, 
 265 if; have menaced safety 
 of society, 266 
 
 Cotton, made the " staple pro- 
 duct" of the South by the 
 invention of the cotton-igin, 
 22 
 
 Crawford, 157, 158 
 
 Critical Period of American 
 History, 7; influence of, 
 missed by Jefferson, 90 
 
 Crittenden Resolution opposed 
 by Stevens, 238 
 
 Dartmouth College case, 144, 
 174 
 
 Davis, Jefferson, elected Presi- 
 dent of the Confederacy, 236 
 
 Declaration of Independence, 
 incorporated the rights of 
 man, 6; text of, 273 if; of 
 South Carolina, 366 #; 
 
 Democracy, development of, in 
 colonies, 5; spirit of, em- 
 bodied in Jefferson, 79; 
 contrast between Jefferson's 
 ideas and modern democracy, 
 80; distrust of, in Constitu- 
 tional Convention, 128; con- 
 trast between Jeffersonian 
 and Jacksonian democracy, 
 149-151; triumph of real 
 democracy in Jackson's elec- 
 tion, 158-160 
 
 Democratic party, Jackson's 
 followers adopt the name of, 
 157; control of Congress by, 
 feared by the Republicans, 
 231 
 
 Democratic-Republican party, 
 beginning of, as party of 
 "strict" construction, 54-55; 
 organization of, by Jeffer- 
 son, 94; opposed the Alien 
 and Sedition acts, 95, 112; 
 swallowed up the Federalist 
 party, 99, 129; Jefferson the 
 leader of, 112; modification 
 of principles of, under Jeffer- 
 son and Madison, 119; suc- 
 cess of, in 1800 not complete, 
 127, 149; unable to over- 
 throw the constructive meas- 
 ures of Federalists, 98, 
 129; belief in the multitude 
 and local self-government, 
 149 
 
 Dickinson, Johii, leader in po- 
 litical discussion, 5; delegate 
 to Constitutional Convention, 
 11 
 
 Douglas, Stephen A., author of 
 doctrine of "Squatter 
 Sovereignty," 211, 216; 
 fathered the Kansas— Neb- 
 raska Bill and espoused the 
 Dred Scott decision, 216; 
 contradiction between doc- 
 trine of " Popular Sov- 
 ereignty" and the Dred 
 Scott decision, 217 
 
Index 
 
 389 
 
 Dred Scott decision, declared 
 Congress and the Territorial 
 Legislatures impotent to pro- 
 hibit slavery in the national 
 domain, 214; abstract of, 
 362 if 
 
 Duane, letter to, from Hamil- 
 ton, on weakness of the 
 Confederation, 36 
 
 Dulaney, leader in political 
 discussion, 5 
 
 E 
 
 " Elastic Clause," of the Con- 
 stitution, 48 
 
 Ellsworth, Oliver, delegate to 
 Constitutional Convention, 
 10^ favors proportional rep- 
 resentation in one branch 
 and equality of the States 
 in the other, 17 
 
 Emancipation Proclamation, 
 issued by Lincoln, 226; text 
 of, 374 if 
 
 Embargo, 100, 171 
 
 Enforcing acts, 100 
 
 Entail abolished in Virginia, 
 85 
 
 " Era of Good Feeling," 157 
 
 Executive, the, differences of 
 opinion in the Convention 
 regarding, 23-24; kind of, 
 brings aristocratic and demo- 
 cratic elements in Con- 
 vention into opposition, 24; 
 direct election of, advocated 
 by Wilson, 61; decision of, 
 on political policies, is con- 
 clusive, 136; raised to a 
 position of supremacy by 
 Jackson, 156; power of, 
 sinks with Jackson's retire- 
 ment from the Presidency, 
 165; power of, increased un- 
 der Lincoln, 224; recedes 
 after the war, 254; position 
 of, affected by Imperialism, 
 260 
 
 Expansion, key-note of last 
 ten years, 256; as result of 
 Spanish War different from 
 that which had preceded. 
 
 258; of recent kind not fore- 
 seen by the framers of the 
 Constitution, 259; has in- 
 creased the centralizing ten- 
 dencies of the Federal Gov- 
 ernment, 260; has strength- 
 ened the position of the 
 Executive, 260 
 
 F 
 
 "Fathers, The," 4; distrust of 
 democracy, 128 
 
 Federal Government, entrusted 
 with all matters of common 
 interest, 25, 70; regarded 
 as judge of its own powers, 
 43, 133-136, 138; need of 
 firm financial footing, 46; 
 strengthening effect of 
 Hamilton's policy upon the, 
 48-49 ; Wilson's conception 
 of the, 56, 60; no league 
 but a national government, 
 117; a government of limited 
 powers, 136 ; power of, to main- 
 tain itself against disunion, 
 162; centralizing tendencies 
 of the, increased by colonial 
 expansion, 260; undertakes 
 new functionSj 264 
 
 Federal State, idea of a, 56; 
 nature of a, stated by Wil- 
 son, 64 
 
 Federal Unionj nature of, dis- 
 cussed by Wilson, 65, 69; by 
 Madison, 114 ff; nationaliz- 
 ing effect upon, of War of 
 1812, 120; nature of, in 
 Webster's view, 176 if; in 
 Calhoun's, 199 ff 
 
 Federalist, the, major portion 
 written by Hamilton, 41; 
 Madison and Jay contribu- 
 tors to, 41; influence upon 
 adoption of Constitution, 41 ; 
 written with a purpose, 66 
 
 Federalist party, beginning of, 
 as party of "loose" con- 
 struction, 54-55; Hamilton 
 the leader of, 94; passed 
 the Alien and Sedition Acts, 
 95, 112; absorbed by De- 
 
39° 
 
 Index 
 
 Federalist party — Continued 
 m o c r a t i c-Republicans, 99, 
 129; feared the weakening 
 effects of victory of Be- 
 rn o c r a t i c-Republicans on 
 Federal Government, 150 
 
 Fifteenth Amendment, logical 
 result of reconstruction 
 legislation, 249 
 
 Fletcher v. Peck, 174 
 
 Foote Resolution, 175 
 
 Force Bill, 179 
 
 Fort Sumter, firing on, the 
 beginning of war, 237 
 
 Fourteenth Amendment, pro- 
 visions of, 246; rejected by 
 Southern States with excep- 
 tion of Tennessee, 248; 
 adoption by Southern States 
 made a condition of their 
 being_ entitled to representa- 
 tion in Congress, 249 
 
 Franklin, Benjamin, delegate 
 to Constitutional Convention, 
 11; proposed Convention 
 should open with prayer, 17; 
 member of committee to 
 draft the Declaration of In- 
 dependence, 83; appointed to 
 negotiate commercial treat- 
 ies, 88 
 
 Free Soilers led by Thaddeus 
 Stevens, 233 
 
 Freedman's Bureau Bill, 245 
 
 "Freeport heresy," 218 
 
 Fugitive Slave Law, influence 
 of, upon Stevens, 233; cause 
 of irritation, 234; revision 
 of, as a concession to the 
 South, 235 
 
 G 
 
 Genet, 95 
 
 Gerry, Elbridge, delegate to 
 Constitutional Convention, 
 10; moved to prevent num- 
 ber of representatives in 
 lower house from new States 
 ever exceeding that of the 
 old States, 19; attributes 
 evils to democracy, 39; spe- 
 cial envoy to France, 131 
 
 Gibbons v. Ogden, 143 
 
 Government, questions of, 
 fought out in law courts 
 and public prints, 5; self-, 
 in the colonies, 5; origin of, 
 in contract, 5; strength in, 
 necessary to liberty, 7; dif- 
 ference between federal and 
 national form of, 13; na- 
 tional form of, approved by 
 the Convention, 13; aim of, 
 20; separation of powers of, 
 in Federal Government, 25; 
 true nature of the Federal 
 Government not determined 
 by the Constitution, 30; 
 Hamilton's views as to the 
 separation of the powers of, 
 45 
 
 H 
 
 Hamilton, Alexander, saw need 
 of common commercial reg- 
 ulations, 8; drafted address 
 of Annapolis Convention, 9; 
 delegate to Constitutional 
 Convention, 11; on its au- 
 thority, 13; disapproves of 
 both the Virginia and the 
 New Jersey plan, 17; chro- 
 nology, 28; foresaw the pos- 
 sibility of growth in national 
 government, 30; services in 
 forming the Constitution 
 and inaugurating the gov- 
 ernment, 30 ; relationship 
 with Washington, 31, 35; 
 sketch of his career, 31 ff; 
 first public speech and writ- 
 ings, 34; military career, 
 34-35; national feeling of, 
 36; member of Continental 
 Congress, 35; letter to 
 Duane on weakness of the 
 Confederation and plan of 
 national bank, 36-37; in the 
 Annapolis Convention, 37; 
 chosen a delegate to the 
 Constitutional Convention, 
 38; distrust of democracy, 
 39; presents his plan of 
 Union, 39; withdrew from 
 Convention, 40; writes major 
 
Index 
 
 391 
 
 Hamilton, Alexander — 
 
 Continued 
 portion of Federalist, 41; 
 defeats Clinton in New York 
 Convention and secures 
 adoption of Constitution, 
 42; view as to nature of 
 Constitution and the Federal 
 Government, 43 ff; attitude 
 toward a Bill of Rights, 45; 
 appointed Secretary of the 
 Treasury, 46; carries 
 through Congress the As- 
 sumption Acts, Excise Bill, 
 and National Bank Act, 46; 
 Tariff Act, 47; attitude 
 toward " implied powers," 
 48; became the head of the 
 Federalist party, 49; op- 
 posed by Jefferson, 49- 
 50; resigned as Secretary 
 of Treasury, 50; idea of 
 government contrasted with 
 that of Wilson and of Jeffer- 
 son, 80; part in location of 
 national capital, 91; es- 
 timate of Jefferson's char- 
 acter, 98; text of opinion, as 
 to the constitutionality of the 
 Bank of the United States, 
 318 ff 
 
 Hartford Convention, 176, 180; 
 text of the amendments to 
 the Constitution proposed by 
 the, 337 ff 
 
 Hayes-Tilden election, 253 
 
 Hayne, Nullification argu- 
 ment replied to by Webster, 
 175, 179 
 
 Henry, Patrick, leader in po- 
 litical discussion, 5; not a 
 delegate to the Constitu- 
 tional Convention, 12 
 
 House of Representatives, pro- 
 portional representation in, 
 17-18; eventual power of 
 electing a President, 25 
 
 Impeachment rejected as a 
 "political proceeding," 250 
 
 Imperialism, ushered in by the 
 Spanish War, 255; effect of, 
 
 upon the position of the 
 President, 260 
 
 " Implied powers," Hamilton's 
 views on the, 48; doctrine 
 of, accepted by the Supreme 
 Court, 138, 142 
 
 Industrialism, questions of, 
 linked with Imperialism, 
 255; individualism and free 
 competition as basis of, have 
 given way to combination, 
 266 
 
 Inherent powers possessed by 
 the Federal Government, 72 
 
 Interpretation, peculiar p r o- 
 minence of, in our system 
 of government, 26; Hamil- 
 ton's view regarding, 37; 
 growth of the Constitution 
 through legal, 127 ff 
 
 Jackson, Andrew, chronology, 
 148 ; unconscious e m b o d i- 
 ment of new conditions, 151 ; 
 sketch of life, 152 ff; public 
 harangue in defence of Burr, 
 154; conception of de- 
 mocracy, 154 ff; introduced 
 " spoils system " into the 
 national administration, 156; 
 raised the Executive to po- 
 sition of supremacy, 156; 
 victory at New Orleans, 156; 
 Seminole War, 156; defeated 
 for the presidency, 157; fol- 
 lowers of, take name of 
 Democrats, 157; effects of 
 Jackson's election, 158 ff; 
 Executive regarded as di- 
 rect representative of the 
 people, 158, 164; works third 
 revolution in our history, 
 160; elected on anti-Hamil- 
 ton platform, 160; fight with 
 the Bank, 160 ff; second ad- 
 ministration almost a fight 
 between classes, 161; in- 
 fluence upon national de- 
 velopment, 161; proclamation 
 against Nullification, 162, 
 179; asserts equal right of 
 
392 
 
 Index 
 
 Jackson, Andrew — Continued 
 President to pass on consti- 
 tutionality of laws, 164; con- 
 demned for assumption of 
 unconstitutionality of the 
 Bank, 164, and for refusal 
 to carry out the judgment 
 of the Supreme Court, 165; 
 hatred of, for Marshall and 
 Calhoun, 197; text of pro- 
 clamation, 345 ff 
 
 Jay contributes to Federalist, 
 41 
 
 Jefferson, Thomas, not a dele- 
 gate to Constitutional Con- 
 vention, 12; opposed a na- 
 tional bank, 49; opposition 
 to Hamilton, 49-50; retired 
 from the Cabinet, 50; chro- 
 nology, 78; embodiment of 
 spirit of democracy, 79; 
 cardinal political principles, 
 79; idea of government con- 
 trasted with that of Hamil- 
 ton and of Wilson, 80; 
 sketch of his life, 81 ff; 
 author of Declaration of In- 
 dependence, 83; work in the 
 Virginia House of Delegates, 
 84-87; entail and primogeni- 
 ture, 85; religious freedom, 
 85-86; education, 86; drew 
 up civil and criminal code, 
 86; attitude toward slavery, 
 86; governor of Virginia, 
 87-88 J member of Congress, 
 88; signed treaty of peace 
 with Great Britain, 88; 
 minister to France, 88; re- 
 lation to French Revolution, 
 89; attitude toward pro- 
 posed Constitution, 90-91 ; 
 appointed Secretary of State, 
 91; part in location of na- 
 tional capital, 91; opposi- 
 tion to Hamilton, 92-93; re- 
 garded Hamilton's financial 
 measures as a puzzle, 92; 
 professed to fear the de- 
 struction by Hamilton of re- 
 publican government, 93 ; 
 organizes a political party, 
 94-95; triumph due largely 
 
 to influence of foreign af- 
 fairs, 95, and to Alien and 
 Sedition Acts, 95; believed 
 bounds of " loose " construc- 
 tion had been passed, 96; 
 wrote the original draft of 
 the Kentucky Resolutions, 97, 
 112; triumph did not lessen 
 strength of Federal Govern- 
 ment, 98 ; purchase of Louisi- 
 ana, 98, regarded as uncon- 
 stitutional, 99; retirement to 
 Monticello, 100 ; text of opin- 
 ion on the constitutionality 
 of a national bank, 315 ff 
 
 Johnson, Andrew, attitude 
 toward Lincoln's plan of Re- 
 construction, 231; early at- 
 titude of hostility to the 
 South soon changed, 231; 
 plan of Reconstruction pro- 
 posed, 243; but discredited 
 with Congress, 244, 245; 
 " swinging around the cir- 
 cle," 247; impeachment of, 
 249 
 
 Johnson, Dr., proposed that in 
 one branch the people, and 
 in the other, the States, 
 ought to be represented, 17 
 
 Kansas-Nebraska Bill, 211 ; 
 threw open the Territories 
 to slavery, 214; fathered by 
 Douglas, 216 
 
 Kentucky Resolutions, 50, 95, 
 96, 133, 139, 171, 176, 180; 
 Jefferson's draft of, 97, 112; 
 advocate right of revolution, 
 Madison said, 98; views of, 
 advanced in Richmond En- 
 quirer, 139; claimed as law- 
 ful source of Nullification, 
 195; text, 326 ff 
 
 King, Rufus, delegate to Con- 
 stitutional Convention, 10; 
 would prohibit number of 
 representatives in lower 
 house from new States ever 
 exceeding that of the old 
 States, 19 
 
Index 
 
 393 
 
 Labor unions, a controlling fac- 
 tor in modem industrial 
 world, 265; have menaced 
 safety of society, 266 
 
 Lansing, supports Paterson's 
 plan, 15; delegate from New 
 York to the Constitutional 
 Convention, 38; discusses the 
 Virginia and the New Jer- 
 sey plans, 63 
 
 Law, power to determine con- 
 stitutionality of, 113; lo- 
 cated in Supreme Court, 
 113; asserted by Marshall, 
 133 
 
 Legal tender, issue of, ad- 
 vocated by Stevens, 240 
 
 Lewis, William B., Jackson's 
 political manager, 157 
 
 Lincoln, Abraham, chronology, 
 210; sketch of his life, 212 
 if; attitude toward slavery, 
 213; opposition to the Dred 
 Scott decision, 215; fear of 
 extension of slavery to the 
 free States, 216; joins Re- 
 publican party, 216; rivalry 
 with Douglas and the sena- 
 torial contest of 1858, 216 
 if; not an abolitionist, 217; 
 debates with Douglas, 217 ff; 
 position on the slavery ques- 
 tion when a presidential 
 candidate, 219 ; Cooper 
 Union speech, 220; Secession 
 changes issue from extension 
 of slavery to preservation of 
 the Union, 221; view as to 
 the indissoluble character of 
 the Union, 222; Secession 
 ordinances regarded as hav- 
 ing no legal effect, 223; use 
 of the war-power to pre- 
 serve the Union, 224; led to 
 temporary dictatorship, 224; 
 development of the " war- 
 powers," 225; Emancipation 
 Proclamation, 226 ; the Union 
 regarded as more precious 
 than the liberty of the slaves, 
 226-227; views on Recon- 
 
 struction, 227, 242; plan of 
 Reconstruction approved by 
 Johnson and rejected by 
 Congress, 231 
 
 Locke, theory of, followed by 
 colonists, 6; idea of dele- 
 gated authority followed by 
 Hamilton, 43 
 
 Louisiana, purchase of aiid 
 "strict" construction, 98; 
 purchase of, regarded as 
 unconstitutional by Jeffer- 
 son, 99; and by Madison, 
 119; importance of a closer 
 union of, realized by Jack- 
 son, 154 
 
 M 
 
 Madison, James, saw need of 
 common commercial regula- 
 tions, 8; delegate to Con- 
 stitutional Convention, 12 ; 
 shows coercion of State un- 
 der the Confederation would 
 be war, 15; argues against 
 evils of New Jersey plan, 
 16; defended admission of 
 new States on terms of 
 equality with the older 
 States, 19; antithesis of 
 States not due to size, but 
 to climate and to presence 
 or absence of slaves, 20; 
 contributes to Federalist, 41 ; 
 aided Jefferson in Virginia 
 legislature, 87; drafted the 
 Virginia Resolutions, 96; re- 
 gards Nullification not as a 
 " constitutional " but as a 
 "natural" right, 98; chro- 
 nology, 102; the "Father of 
 the Constitutio n," 103 ; 
 leader of opposition in Con- 
 gress to Hamilton's policy, 
 103-104; antagonism due to 
 economic difference between 
 the States, 104; unconscious 
 agent of centralizing forces, 
 105; sketch of his life, 105 
 if; early national tendencies, 
 106; part in the Constitu- 
 tional Convention, 107 ff; 
 
394 
 
 Index 
 
 Madison, James — Continued 
 need of fundamental change 
 in Articles of Confederation, 
 109; the Federal Govern- 
 ment a compound form, 110, 
 121; reaction against cen- 
 tralizing tendencies. 111 ; 
 drafted Virginia Resolutions, 
 113; interpretation of the 
 Resolutions, 114-115; re- 
 garded State as founded upon 
 a contract, 115; rejects 
 right of Nullification and 
 Secession, except as revolu- 
 tionary, 115-117; Union not 
 regarded as a mere league, 
 117; appointed Secretary of 
 State, 118; faults as an ex- 
 ecutive officer, 118; opposed 
 purchase of Louisiana, 119; 
 nationalizing effects of his 
 career, 119-121; War of 
 1812 forced upon him, 120; 
 retired from the Presidency, 
 121 ; retirement spent largely 
 in expounding the Consti- 
 tution, 121-122; untenable 
 position of " Madisonian 
 Federalism," 122 ; attitude 
 toward sovereignty, 123; re- 
 fused to issue Marbury his 
 commission, 133 ; protests 
 against the use of Jeffer- 
 son's name in support of 
 Nullification, 195 
 
 Madisonian Federalism, 122 
 
 Marbury v. Madison, 71, 113, 
 133, 137, 139; abstract of 
 decision in the case of, 335 ff 
 
 Marshall, seized possibilities 
 of " commerce clause " of 
 Constitution, 23; anticipated 
 by Wilson, 71 ; asserts power 
 of Supreme Court to declare 
 a law unconstitutional, 113; 
 chronology, 126 ; interprets 
 Constitution in national 
 sense, 127-129 ; " expounder 
 of the Constitution," 130; 
 sketch of his life, 130 ff; 
 demonstrates the "efficiency" 
 of the Constitution, 132- 
 135; and the "extent" of 
 
 the judicial power of Su- 
 preme Court, 137-143; con- 
 tests with the Virginia 
 courts, 137-143; approves 
 doctrine of " implied pow- 
 ers," 141-143; lays down 
 fundamental principles of 
 " commerce clause," 143 ; 
 Dartmouth College case, 
 144; establishes right of the 
 Union to acquire territory, 
 144; in conflict with Jack- 
 son, 164 
 
 Martin, Luther, delegate _ to 
 Constitutional Convention, 
 11; supporter of the rights 
 of the small States, 11; op- 
 poses Virginia plan, 16 
 
 Martin v. Hunter's lessee, 138 
 
 Mason, George, delegate to Con- 
 stitutional Convention, 11 ; 
 defended admission of new 
 States on terms of equality 
 with the older States, 19 
 
 McCuUoch V. Maryland, 138 
 
 Mexican War, Lincoln's at- 
 titude toward, 212; brought 
 question of the extension of 
 slavery to the front, 234 
 
 Mjississippi, dispute concern- 
 ing free navigation of, 9; 
 cession of Mississippi valley 
 to Spain opposed by Madi- 
 son, 106; importance of, ap- 
 preciated by Jackson, 154 
 
 Missouri Compromise, passed, 
 172; repealed, 211 
 
 Monroe, 157 
 
 Monroe doctrine reformulated 
 by Roosevelt, 263 
 
 Montesquieu, influenced Ameri- 
 can thought, 6; separation 
 of powers of government 
 based upon a misconception, 
 44 
 
 Monticello, Sage of, 100 
 
 Morocco, United States parti- 
 cipates in conference on, 264 
 
 Morris, Gouverneur, delegate to 
 Constitutional Convention, 
 11 ; stated difference betwaen 
 federal and national govern- 
 ment, 13; feared control of 
 
Index 
 
 395 
 
 Morris, Gouvemeur — Continued 
 the Atlantic States by the 
 West, 19; moved that repre- 
 sentatives and direct taxes 
 ahould be apportioned ac- 
 cording to numbers, 21 
 
 Morris, Robert, delegate to 
 Constitutional Convention, 
 11; loss of his fortune af- 
 fected his reputation, 58 
 
 N 
 
 National Anti-Slavery Society 
 established, 186 
 
 National Bank, see Bank 
 
 National Government, vote of 
 the Constitutional Conven- 
 tion to establish a, 13; 
 growth of the power of the, 
 25 
 
 Nature, state of, eighteenth- 
 century view of, 5; accord- 
 ing to Wilson, not a state of 
 war, 67 
 
 Navigation Act, passage of a, 
 by Congress desired by the 
 Eastern and Middle States, 
 22 
 
 Negro suffrage, adoption of, 
 forced on the Southern 
 States, 249 
 
 New England opposed the 
 War of 1812, 192 
 
 New Jersey plan, equality of 
 States retained in, 15; cen- 
 tre of the struggle between 
 the large and the small 
 States, 15, 39; presented by 
 Paterson, 15, 63; discussed, 
 and rejected, 63 
 
 North, the, diiference between, 
 and the South, 20; felt the 
 force of national sentiment, 
 170 ; rejects Nullification and 
 Secession as destructive of 
 the Union, 185; attitude of, 
 toward the Fugitive Slave 
 Law, 234 
 
 Nullification, by a single State 
 not intended by Jefferson, 
 98; support sought for in 
 Virginia Resolutions, 114; 
 
 rejected by Madison, 115- 
 117; secession its logical 
 successor, 130, 177; attacked 
 by Jackson, 162; defended 
 by Hayne, 175; who asserted 
 right of each State to judge 
 as to the constitutionality 
 of laws, 182; asserted to be 
 a constitutional right, 184; 
 declared revolutionary by 
 Webster, 184; programme of, 
 set forth by Calhoun, 195; 
 text of South Carolina ordi- 
 nance of, 340 ff 
 
 O 
 
 Ordinance of Secession of 
 South Carolina, text, 368 
 
 Otis, James, leader in political 
 discussion, 5 
 
 Pacific Blockade of Venezue- 
 lan port regretted by Roose- 
 velt, 263 
 
 Paine, Thomas, champion of 
 democracy, 5 ; Common Sense, 
 83 
 
 Pakenham, 156 
 
 Panama Canal, building of, 
 made possible by Roosevelt, 
 264 
 
 Paterson, William, delegate to 
 Constitutional Convention, 
 11; presented New Jersey 
 plan, 15, 63; contests right 
 of Convention to vary idea 
 of equal sovereignty, 15, 62; 
 discusses the two plans, 63 
 
 Pinckney, Charles, delegate to 
 Constitutional Convention, 
 12 ; difference between North 
 and South due to divergent 
 economic interests, 20 
 
 Pinckney, C. C, delegate to 
 Constitutional Convention, 
 12 ; advocates including 
 blacks equally with whites 
 in rule of representation, 
 20; abolition of slave trade 
 an invitation to South Caro- 
 
396 
 
 Index 
 
 Pinckney, C. C. — Continued 
 lina to withdraw from the 
 Union, 22; special envoy to 
 France, 131 
 
 Primogeniture abolished in 
 Virginia, 85 
 
 Randolph, Edmund, delegate 
 to Constitutional Conven- 
 tion, 12; on the authority of 
 the Convention to go beyond 
 mere amendment of the 
 Articles of Confederation, 
 13; presented Virginia plan, 
 15; defines national plan 
 as a resort to national legis- 
 lation over individuals, 
 16 
 
 Reconstruction, Lincoln's views 
 of, 227; Lincoln's theory of, 
 227, 242; period of, begun, 
 231; Stevens, the dictator of 
 the early period of, 237; 
 Stevens's " conquered pro- 
 vince," theory of, 243; ef- 
 fects of Johnson's plan of, 
 244; by Executive opposed 
 by Stevens, 245; by Con- 
 gress, 247-249; dependent 
 upon adoption of Fourteenth 
 Amendment, 249 ; military 
 governments during, 249 
 
 Religious freedom secured in 
 Virginia, 85-86 
 
 Representation, equal under 
 Articles of Confederation, 
 14; under Constitution, pro- 
 portional in lower house, 
 equal in Senate, 18; direct 
 taxes in proportion to repre- 
 sentation, 21; slaves counted 
 at three-fifths ratio in, 22; 
 Wilson's views on, in the 
 Convention, 62 
 
 Republican party, Lincoln 
 early a member of, 216; 
 fears the Lincoln-Johnson 
 plan of Reconstruction, 231; 
 firm against the extension of 
 slavery, 235-236 
 
 Revolution, the, i»receded by 
 political discussion, 5; no 
 new ideas of government de- 
 veloped during, 6; with close 
 of, national feeling weak- 
 ened, 7; assured the right 
 to life, liberty, and the 
 pursuit of happiness, 12 
 
 Rights, Bills of, 6; opposed by 
 HamiltoHj 45; lack of in the 
 Constitution, a cause of 
 Jefferson's opposition, 90 ; 
 
 Rights of man developed by 
 the colonists, 6 
 
 Roane, Judge, 138 
 
 " Roosevelt Policies," guides of 
 government action, 256 
 
 Roosevelt, Theodore, chron- 
 ology, 252; identified with 
 the changes of the last ten 
 years, 256; sketch of his 
 life, 257 ; relation to changes, 
 258; influence upon the posi- 
 tion of the Executive, 261; 
 leader in bringing realiza- 
 tion of position of United 
 States as a world-power, 
 263; reformulates the Mon- 
 roe Doctrine, 263; action in 
 San Domingo, 263; makes 
 Panama Canal possible, 264; 
 secures participation of 
 United States in conference 
 on Morocco, 264; secures ad- 
 mission of South and Cen- 
 tral American States to 
 second Hague Conference, 
 264; t3T)ical of constitu- 
 tional changes resulting 
 from modem industrial con- 
 ditions, 264; influence used 
 to settle coal strike, 266; 
 perceived the dangers from 
 combinations of labor and of 
 capital, 267; theory of gov- 
 ernment, 267-268; con- 
 trasted with Jefferson and 
 Jackson, 268; belief in gov- 
 ernment as an organ for 
 the advancement of the in- 
 terests of society, 268; re- 
 semblance of theory of, to 
 that of Wilson, 268 
 
Index 
 
 397 
 
 Rutledge, John, delegate to 
 the Constitutional Conven- 
 tion, 12 
 
 Schuyler, Miss Elizabeth, mar- 
 ried to Alexander Hamilton, 
 35 
 
 Scott, see Dred Scott 
 
 Secession, logical successor to 
 Nullification, 130 ; declared 
 revolutionary by Webster, 
 184; ordinance of, passed, 
 220, 235; regarded by Lin- 
 coln as rebellion, 221-223 
 
 Second Hague Conference, ad- 
 mission of South and Cen- 
 tral American States, 264 
 
 Sedition, see Alien and Sedi- 
 tion Acts 
 
 Seminole, War, 156 
 
 Senate, equal representation in, 
 proposed, 17; agreed to, 18; 
 vote per capita, not by 
 
 ■ States, 19; equal represen- 
 tation in, opposed by Wil- 
 son, 62-63 
 
 Separation of the powers of 
 government, see Government 
 
 Shays's Rebellion, in full 
 swing, 8; alarm caused by, 
 9, 24 
 
 Sherman, Roger, delegate to 
 Constitutional C o n v ention, 
 10 ; proposes proportional 
 representation in first 
 branch and equality in Sen- 
 ate, 17; distrust of the peo- 
 ple, 39 
 
 Slavery, belief that it would 
 die out, 22; demands exten- 
 sion, 173; the great issue 
 from days of Nullification, 
 185 ; National Anti-Slavery 
 Society established, 186; at- 
 titude toward, of Webster, 
 186; of Calhoun, 196, 207; 
 of Lincoln, 213; in the 
 Territories, 214 ; existence 
 of, the cause of difference 
 between North and South, 
 225; regarded as a "posi- 
 
 tive good" by the South, 
 234 
 
 Slaves, counted at three-fifths 
 ratio in enumeration for 
 representation in lower 
 house, 21-22; importation 
 not to be forbidden before 
 1808, 23; emancipated, 226 
 
 South, the, diflPerence between 
 the North and, 20; slaves a 
 special kind of property in, 
 20; not yet set apart in 
 thought and feeling, 163; 
 felt the force of national 
 sentiment, 170; eager for 
 the War of 1812, 192; favor 
 of the, courted by Johnson, 
 231; attitude of, toward the 
 Fugitive Slave Law, 234; 
 acceptance by, of Johnson's 
 plan of Reconstruction, 244 
 
 Sovereignty, Hamilton's con- 
 ception of, 44; resides in the 
 people according to Wilson 
 68; regarded as divisible by 
 Madison and as indivisible 
 by Calhoun, 123-124; meant 
 to Calhoun the final and ul- 
 timate power of judgment, 
 206; of the nation, 254 
 
 Spain, dispute with, over the 
 free navigation of the Mis- 
 sissippi, 8 
 
 Spanish War ushered in Im- 
 perialism, 255 
 
 Spoils System introduced into 
 the national administration 
 by Jackson, 156 
 
 Squatter Sovereignty, 211 
 
 State-Rights, Calhoun, the 
 champion of, in the Senate, 
 196; conflict between, and 
 democracy, 200; a new kind 
 of, 262 
 
 States, experience of, in mak- 
 ing constitutions, 6; attitude 
 of the, toward the Con- 
 federation, 7; opposition be- 
 tween the large and the 
 small, 14, 43-44, 62-64; 
 real diflPerence was between 
 Northern and Southern, 20; 
 Hamilton's idea of the re- 
 
398 
 
 Index 
 
 states — Continued 
 lation of the, to the Federal 
 Government, 44; Wilson's, 
 64, 69-70, 72-73, 110; Jeffer- 
 son's, 96; Madison's, 109- 
 110, 115; Marshall's, 132; 
 Jackson's, 162 ; Webster's, 
 179; Calhoun's, 199-200; 
 Lincoln's, 222; Stevens's, 
 236; Roosevelt's, 261-262 
 
 States, Northern, desired clos- 
 ure of the Mississippi in 
 return for commercial treaty, 
 9; opposition of, to the 
 Southern States, 20-22; de- 
 sired reg:ulation of commerce 
 by Congress, 22; slavery dis- 
 appeared in the, 22 
 
 States, Southern, opposition of, 
 to closure of the Mississippi 
 by Spain, 9; opposition of, 
 to Eastern States, 20-22 
 
 Stevens, Thaddeus, chronology, 
 230; leader in Congress in 
 fight against Johnson, 232; 
 chairman of the Committee 
 on Ways and Means, 232; 
 sketch of his life, 232 ff; 
 views on slavery, 233; leader 
 of the Free Soilers in Con- 
 gress, 233; opposed to com- 
 promise with the South, 
 236; influence of, became 
 dominant with Lincoln's 
 death, 237; dictator during 
 early Reconstruction, 237 ; 
 theory regarding Secession, 
 237 ff; opposed the "Crit- 
 tenden Resolution," 238; ad- 
 vocated confiscation, 238 ; 
 not scrupulous about the 
 constitutionality of means 
 employed to uphold the Con- 
 stitution, 239; advocated the 
 issue of legal tender notes, 
 240; attitude toward the 
 admission of West Virginia, 
 240-241 ; regarded proclama- 
 tion of blockade as recogni- 
 tion of Confederate States, 
 241; in conflict with theory 
 of Reconstruction of Lin- 
 coln and Johnson, 242; "con- 
 
 quered province " theory, 
 243; leader of the radical 
 reaction in North against 
 Johnson's plan of Recon- 
 struction, 244; House Chair- 
 man of Committee on 
 Reconstruction, 245; opposed 
 Reconstruction by Executive 
 action alone, 245; secures 
 passage of the Freedman's 
 Bureau Bill and Civil Rights 
 Bill, 245; introduced Four- 
 teenth Amendment in the 
 House, 246; makes Recon- 
 struction the result of Con- 
 gressional action, 247; re- 
 futation of argument that 
 the seceding States had never 
 been out of the Union, 247- 
 248; attempted impeachment 
 of President Johnson, 249 
 Story, Judge, opinion of Hamil- 
 ton's argument on the Na- 
 tional Bank, 48 
 Sumter, Fort, fired upon, 237 
 Supreme Court, part played 
 by James Wilson in estab- 
 lishing, 57, 71; first consti- 
 tutional case presented to, 
 72; question of jurisdiction 
 of, 72-73; right to declare 
 a law unconstitutional as- 
 serted, 113; doctrine estab- 
 lished by, that Constitution 
 does not follow the flag, 
 120; under Marshall as 
 chief justice, develops na- 
 tional tendencies, 128; right 
 to declare a law unconstitu- 
 tional, 133-135 ; political 
 policies not subject of de- 
 cision by, 136; "extent" of 
 judicial power of, 137; at- 
 tempt of, in Dred Scott 
 decision, to settle the slavery 
 question, 215 
 
 Tariff, of 1832 reasserts prin- 
 ciple of protection, 178; Web- 
 ster's opposition to a protec- 
 tive, 171 ; change in Webster's 
 attitude toward the, 172 
 
Index 
 
 399 
 
 Territories, power of Congress 
 over slavery in the, 213; 
 thrown open to slavery, 214 
 
 Texas, annexation of, 173 
 
 Thirteenth Amendment, abol- 
 ished slavery, 226, 246 
 
 Trust, a controlling factor in 
 modern industrial world, 265 
 
 U 
 
 Union, sought by colonists to 
 throw off oppression, 7; re- 
 vision of the government of 
 the, recommended by the 
 Annapolis convention, 9; ef- 
 fect upon, of New York's 
 adoption of the Constitution, 
 42; Hamilton's view of the 
 nature of the, 42 if; su- 
 premacy of, settled by the 
 Civil War, 74; Wilson's view 
 of the nature of the, 56, 64, 
 69, 73; Jefferson's view of, 
 96; Madison's view of, 114 
 ff; not a mere league, 117; 
 Jackson's proclamation in 
 defence of, 162; liberty and, 
 inseparable, 176; preserva- 
 tion of the, sought by Cal- 
 houn through Nullification, 
 199; preservation of the, 
 became chief concern of 
 Lincoln, 220; seceding States 
 never out of the, 242 
 
 United States v. Fisher, 141 
 
 iVenezuela, Pacific blockade of 
 ports of, 263 
 
 Virginia plan, centre of the 
 struggle between the large 
 and the small States, 15, 39; 
 presented to the Constitu- 
 tional Convention by Ran- 
 dolph, 16; equality of States 
 abolished by, 15; reported 
 by Committee of the Whole 
 and adopted by the Conven- 
 tion, 63 
 
 iVirginia Resolutions, 50, 95, 
 96, 133, 139, 171, 176, 180; 
 
 Madison said they advocated 
 natural right of revolution, 
 98; drafted by Madison, 113; 
 views of, advanced in Rich- 
 mond Enquirer, 139; claimed 
 as lawful source of NuUi-i 
 fication, 195; text, 332 ff 
 
 W 
 
 War of 1812, forced upon 
 Madison, 120; nationalizing 
 effects, 120-121, 129, 171; 
 opposition to, secured Web- 
 ster's election to Thirteenth 
 Congress, 171 
 
 Washington, saw need of com- 
 mon commercial regulations, 
 8; chosen presiding officer of 
 the Constitutional Conven- 
 tion, 11; attended first of 
 Wilson's lectures, 66; ap- 
 pointed commander-in-chief, 
 83; desired neutrality, 95 
 
 Webster, Daniel, advocate in 
 Dartmouth College Case, 
 144; wished to test the 
 strength of Federal Govern- 
 ment against South Caro- 
 lina, 163; chronology, 168; 
 attitude of his generation 
 toward the Constitution, 
 169; voiced the growing na- 
 tional sentiment, 170, 177; 
 sketch of his life, 171; op- 
 position to protective tariff 
 and to the War of 1812, 171; 
 career contrasted with Cal- 
 houn's, 171 ; opposed " Tariff 
 of 1824 " and supported the 
 " Tariff of Abominations " 
 in 1828, 172; grew up in a 
 Federalist atmosphere, 173; 
 part in Dartmouth College 
 Case, 174-175; reply to 
 'H.a.yas, 175 ff; seeks chief 
 argument in provisions of 
 Constitution itself, 178; re- 
 ply to Calhoun, 179 ff; 
 strength and weakness of 
 his argument, 180; denies 
 right of Nullification, 183; 
 regards Federal Government 
 
400 
 
 Index 
 
 Webster, Daniel — Continued 
 as final and conclusive judge 
 of its own powers, 183; de- 
 fends the Bank, 195; joins 
 in passing the Resolution of 
 Censure upon Jackson, 185; 
 condemned slavery but was 
 not an abolitionist, 186; op- 
 posed compromise in 1832, 
 but favored it in 1850, 186; 
 desired always to preserve 
 the Union, 186 
 
 West, need of expansion to- 
 ward, foreseen in the Con- 
 stitutional Convention, 19; 
 political ideas of the, tri- 
 umph over the East, 160; 
 attitude of the, toward the 
 Union, 184; eager for the 
 War of 1812, 192 
 
 West Virginia, admission of, 
 240-241 
 
 Whigs, led by Clay, 158; led 
 by Thaddeus Stevens, 233 
 
 Whitney, influence of cotton- 
 gin on slavery, 22 
 
 Wilkinson, General, 154 
 
 Wilson, James, delegate to 
 Constitutional Convention, 
 11 ; favors the Virginia plan, 
 15, 16; defended admission 
 of new States on terms of 
 equality with the older 
 States, 19; opposes admis- 
 sion of blacks at three-fifths 
 ratio, 21; chronology, 54; 
 conception of a federal State, 
 56, 69; part in establishing 
 position of Supreme Court, 
 57; reasons why he is not 
 better known, 57-58; sketch 
 of his life, 58 ff; service in 
 Continental Congress, 59; in 
 Constitutional Convention, 
 59, 60; on Supreme Court 
 Bench, 59; professor of law, 
 59; conception of law, 60; 
 believer in democracy, 61; 
 advocated direct election of 
 Executive and both branches 
 
 of Congress, 61-62; ojjposed 
 equality of representation in 
 Senate, 62-63; advocates the 
 Virginia plan, 63; tenacious 
 of idea of preserving the 
 States, 64; perceived true 
 nature of Federal State, 
 64; opposed election of mem- 
 bers of second branch of the 
 legislative body by the State 
 legislatures, 64; twofold re- 
 lation of citizens under the 
 proposed form of Union, 64; 
 stood for strong national 
 state, 65; lectures on law 
 and the Constitution, 65 ff; 
 conception of society, 66- 
 67; distinguishes between so- 
 ciety and government, 68; 
 idea of sovereignty, 68; re- 
 gards United States ,as form- 
 ing one nation, 69, 73; con- 
 stitution not founded upon 
 compact, but upon the power 
 of the people, 70 ; anticipates 
 Marshall, 71; believed in in- 
 herent powers of United 
 States as a sovereign na- 
 tion, 72; decision in Chis- 
 holm V. Georgia, 73; signer 
 of Declaration of Indepen- 
 dence, 74; guide for Roose- 
 velt's political actions, 75; 
 idea of government con- 
 trasted with that of Hamil- 
 ton and Jeiferson, 80 
 Wythe, George, delegate, to 
 Constitutional Convention, 
 11; Jefferson studied law 
 under, 81 
 
 X Y Z letters, 131 
 
 Y 
 
 Yates, delegate from New York 
 to Constitutional Convention, 
 38; left the Convention, 38 
 
"A work indispeasabk to students ot Aaericaa History,' 
 
 The Journal of the 
 
 Debates in the Convention 
 
 Which Framed 
 
 The Constitution of the 
 United States 
 
 May-September, 1787 
 
 As Recorded by JAMES MADISON 
 
 Ectited with Introduction and Notes by 
 GAILLARD HUNT 
 
 s Volumes, Svo. $4,SO net per set. Uniform with Lodge's 
 EdiHon of '• The Federalist:* 
 
 These two volumes comprise Madison's complete record of the proceed- 
 ings of the Constitutioiial Convention and give in the notes comparative 
 comments based upon that journal and the less complete chronicles of the 
 convention made by Yates, King, and Pierce. 
 
 James Madison's contemporaries generally conceded that he was the 
 leading statesman in the convention which framed the Constitution of the 
 United States ; but in addition to this he kept a record of the proceedings 
 of the convention which outranks in importance all the other writings of 
 the founders of the American Republic. He is thus identified^ as no other 
 man is, with the making of the Constitution and the correct interpretation 
 of the intentions of the makers. His is the only continuous record of the 
 proceedings of the convention. He took a seat immediately in front of the 
 presiding officer, facing the members, and took down every speech or motion 
 as it was made, using abbreviations of his own and immediately afterwards 
 transcribing his notes when he returned to his lodgings. A few motions 
 only escaped him, and of important speeches he omitted none. The pro- 
 ceedings were ordered to be kept secret, but his self-imposed task of reporter 
 had the official sanction of the convention. 
 
 Q. P. PUTNAM'S SONS 
 
 New York London 
 
" The best summary at present available ot the 
 political history of the United States." 
 
 Frank H. Hodder, Professor of American History in the 
 University of Kansas. 
 
 American Political History 
 
 1763=1876 
 By Alexander Johnston 
 
 Edited and Supplemented by 
 
 James Albert Woodburn 
 
 Professor of History and Political Science, Indiana Uni- 
 versity; Author of " The American Republic," 
 " Political Parties and Party Problems 
 in the United States," etc. 
 
 /» two parts, each complete in itself and indexed, Ocatvo. 
 Each, net $2.00 
 
 1. The Revolution, the Constitution, and the Growth 
 of Nationality. 1763-1832. 
 
 2, The Slavery Controversy, Secession, Civil War, 
 and Reconstruction. 1820-1876. 
 
 These volumes present tlie principal features in the political histozy 
 of the United States from the opening of the American Revolution to 
 the close of the era of the Keconstruction. They give in more con- 
 venient form the series of articles on **American Political History " con- 
 tributed to Lalor's "Cyclopedia of Political Science, Political Economy, 
 and Political History," by the late Professor Alexander Johnston. 
 
 *' These essays, covering the^whole field of the polirical history of the 
 United States, nave a continuity and unity of purpose ; introduced, 
 arranged and supplemented as they have been by Professor Woodburn 
 (who contributes a very necessary chapter on the Monroe Doctrine) they 
 present a complete and well-balanced history of the politics of the United 
 States." — Hart/ord Courant, 
 
 ^ G. P. PUTNAM'S SONS 
 
 New York London 
 
r 
 
 By James Albert Woodburn 
 
 (Profenor of American Hiatory and Polidc*, Indiana UnJveinty) 
 
 The American Republic and Its Qovernment. 
 
 An Analysis of the Government of the United 
 States, with a Consideration of its Funda- 
 mental Principles and of its Relations to the 
 States and Territories. Octavo (by mail, 
 $2 20) net, $2 00 
 
 " A sounder or more useful commentary has never befme 
 seen the light. Even Mr. James Bryce's study of the 'Ameri- 
 can Commonwealth ' must on the whole be deemed less fruit- 
 ful. Not a single page should be overlooked." — M. W. 
 Hazeltine in the N. Y. Sun. 
 
 " Every citizen that wishes to obtain a clear and compre- 
 hensive knowledge of the government under which he lives 
 can hardly forego acquaintance with this work, and its orderly 
 arrangement and lucid style will make the acquaintance a 
 pleasure as well as a profit." — Indianapolis News, 
 
 Political Parties and Party Problems in the 
 United States. A Sketch of American 
 Party History and of the Development and 
 Operations of Party Machinery, together with 
 a Consideration of Certain Party Problems in 
 their Relations to Political Morality. Octavo 
 (by mail, $2 20) . . . net, $2 00 
 
 "An exceptionally clear, interesting, and impartial history 
 of American political parties, a lucid explanation of the work- 
 ings of party machinery, and a strong statement of the moral 
 evils now debasing our political life, and the remedies which 
 an awakened public conscience may apply. A thoroughly 
 good book for the school and for the study." — Outlf* 
 
 Send for D»serlptl00 Circular 
 
 G. P. PUTNAM'S SONS 
 
 NBW yORK lONDOM 
 
'^ 
 
 " Thoroughly well^nfortned and scholarly," 
 
 Prof, Charles M, Andrews, Johns Hopkins University 
 
 The Making of the 
 English Constitution 
 
 449-1485 
 
 By 
 
 Albert Beebe White 
 
 Professor of History in the University of Minnesota 
 
 Svo. 440 pages. $2.00 net 
 
 ** This book is of interest as being the first text-book, that 
 is a book for beginners in constitutional history, which has 
 deliberately disregarded the older doctrines and joined the 
 movement for a reconstruction of our familiar conceptions of 
 Anglo-Saxon institutions. . . . [The author] has 
 treated the subject with great clearness of analysis and state- 
 ment, a familiarity with the best research in the field, and 
 probably as good a combination of the topical and chronologi- 
 cal arrangement as can be made. There' is no more clear and 
 scholarly treatise on English constitutional history during the 
 Middle Ages in existence." — The Annals of the American 
 Academy of Political and Social Science, 
 
 ' ' The book impresses me as accurate and reliable. . . . 
 Excellent material has been given to the judiciary and the 
 Parliament. . . , The book is written in clear English, 
 and the style is readable. . . . It is a satisfaction to find 
 that the author has given us not merely a condensation of 
 Stubbs, but a fresh account of his subject. The author is to 
 be commended also for generally refusing to devote space to 
 controversial problems." — Professor Lawrence Larson, Unif 
 versify of Illinois, 
 
 Send for descriptive circular 
 
 G. p. Putnam's Sons 
 New York London